IN THE SUPREME COURT OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA Case No. SC LT Case No CA-1824 DAWN K. ROBERTS, in her capacity as Interim Secretary of State ofthe State offlorida and BOB GRAHAM, v. Petitioners, CORRINE BROWN, MARIO DIAZ-BALART, FLORIDA HOUSE OF REPRESENTATIVES, and FLORIDA SENATE, Respondents. APPENDIX TO REPLY BRIEF OF PETITIONER BOB GRAHAM TO RESPONDENTS' RESPONSES TO PETITION FOR CONSTITUTIONAL WRIT OR, ALTERNATIVELY, FOR WRIT OF PROHIBITION RONALD G. MEYER Florida Bar No JENNIFER S. BLOHM Florida Bar No LYNN C. HEARN Florida Bar No Meyer, Brooks, Demma and Blohm, P.A. 131 North Gadsden Street Post Office Box 1547 Tallahassee, FL (850) Tel (850) Fax MARK HERRON Florida Bar No ROBERT J. TELFER, III Florida Bar No Messer, Caparello & Self, P.A. Post Office Box Tallahassee, FL (850) Tel (850) Fax STEPHEN S. DOBSON, III Florida Bar No Dobson, Davis & Smith 610 North Duval Street Tallahassee, FL (850) Tel (850) Fax

2 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy has been provided to tqe following by United States Postal Service and by electronic mail on this ~\l'\lay ofjuly, 2010 to: Stephen M. Cody SW 82 Court Palmetto Bay, FL Telephone: Facsimile: stcody@stephencody.com Counselfor Respondents Corinne Brown and Mario Diaz-Balart George N. Meros, Jr. gmeros@gray-robinson.com Allen C. Winsor awinsor@gray-robinson.com Andy Bardos abardos@gray-robinson.com Gray Robinson, P.A. Post Office Box Tallahassee, FL Telephone: Facsimile: Counsel for Respondent Florida House ofrepresentatives Miguel De Grandy Miguel De Grandy, P.A. 800 S Douglas Road, Suite 850 Coral Gables, FL Telephone: Facsimile: mad@degrandylaw.com Counsel for Respondent Florida House ofrepresentatives James A. Scott jas@trippscott.com Edward J. Pozzuouli ejp@trippscott.com Stephanie Alexander sda@trippscott.com Brady J. Cobb bjc@trippscott.com Tripp Scott, P.A. 110 Southeast Sixth Street, 15th Floor Ft. Lauderdale, FL and 200 West College Avenue, Suite 216 Tallahassee, FL Counsel for Respondent Florida Senate Michael G. Tanner Tanner Bishop 1 Independent Drive, Suite 1700 Jacksonville, FL Telephone: Facsimile: mtanner@tannerbishoplaw.com Counsel for Petitioner Interim Secretary Dawn K. Roberts

3 John S. Mills Florida Bar No The Mills Firm One Independent Drive, Suite 1700 Jacksonville, Florida Telephone: Facsimile: Counselfor Petitioner Interim Secretary Dawn K. Roberts C.B. Upton General Counsel Florida Department of State R.A. Gray Building 500 South Bronough Street Tallahassee, Florida Telephone: Facsimile: Counselfor Dawn K Roberts, Florida Interim Secretary ofstate Rick Figlio rick.figlio@eog.myflorida.com J. Andrew Atkinson drew.atkinson@eog.myflorida.com Simonne Lawrence simonne.lawrence@eog.myflorida.com Executive Office of the Governor 400 South Monroe Street Tallahassee, Florida Telephone: Facsimile: Counselfor Governor Charlie Crist as Amicus Curiae Trial Judge (required to be servedper Fla. R. App. P (e) (2)) Hon. Jackie Lee Fulford Circuit Judge 301 S. Monroe St. Tallahassee, FL

4 TABLE OF CONTENTS The Florida Senate's Response in Opposition to Motion ofbob Graham to Intervene as Defendant Order Terminating Discovery and Canceling TriaL 1 7

5 IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLOIUDA CORRINE BROWN and MARlO DIAZ-BALART, CASE NO: 10-CA 1824 Plaintiffs, vs. DAWN K. ROBERTS, in her capacity As Interim Secretary of State of the State of Florida, Defendant _./ THE FLORIDA SENATE'S RESPONSE IN OPPOSITION TO MOTION OF BOB GRAHAM TO INTERVENE AS DEFENDANT COMES NOW, the FLORIDA SENATE ("Florida Senate"), by and through its undersigned counsel and hereby files this, its Response in Opposition to the Motion ofbob Grahalll ("Graham") to Intervene as a Defendant into the above styled litigation and in support thereof states the following: 1. INTRODUCTION 1. On June 11, 2010, potential Intervenor Graham filed a Motion to Intervene into the case at bar as a party Defendant. 2 For the reasons more fully stated herein, Grahan1's Motion to Intervene must be denied as he does not have a direct or immediate legal interest in the narrow subj ect matter of this litigation sufficient to warrant intervention as a party. Furthermore, Graham will not gain or lose anything by the direct legal operation and effect of any judgment in this case vl Page J of6 Appendix page 1

6 II. MEMORANDUM OF LAW A. Standard of Review Under Florida Rule of Civil Procedure 1.230, a court must first "determine that the interest asserted is appropriate to support intervention" by the movant. Union Cent. Life Ins. Co. v. Carlisle, 593 So. 2d 505, 507 (Fla. 1992). The asserted interest must be "of such a direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment." Sullivan v. Sapp, 866 So. 2d 28, 33 (Fla. 2004) (quoting Carlisle, 593 So. 2d at 507). A showing of an indirect, inconsequential or contingent interest is wholly inadequate. Stefanos v. Rivera-Berrios, 673 So.2d 12, 13 (Fla. 1996). Furthermore, to justify intervention, the asserted interest must be already at issue and be of a kind the would-be intervenor is a proper part to raise. YH v. FL.H, 784 So.2d 565 (Fla. 1sf DCA 2001). "Once the trial court determines that the requisite interest exists, it must exercise its sound discretion to determine whether to permit intervention." Carlisle, 593 So. 2d at 507. In the exercise of its discretion, the court must consider any "relevant circumstance." Id. Intervention, while it can be liberally granted, is not an absolute right and rests within the sound discretion of the trial court. Florida Wildlife Federation, Inc. v. Board of Trustees of Internal imp., 707, So.2d 841 (5 th DCA. 1998). B. Graham Does Not Have a Sufficient Interest to Intervene as a Party Defendant Florida case law unambiguously demands the denial of Graham's Motion to Intervene. As sole justification for his Motion to Intervene as a party-defendant, Graham alleges that he has a "direct and immediate interest" in this litigation only because he is a registered voter and taxpayer in the State of Florida who intends to vote in the November 2010 general election. (Graham Motion to Intervene, par. 5). Graham further states, albeit erroneously and in v J J Page 2 of6 Appendix page 2

7 conclusory fashion, that he has a right to intervene into this case as an interested pmiy because the Plaintiffs' are allegedly seeking to nullify his right to amend the Florida Constitution. (Graham Motion to Intervene, par. 10). Graham's contention in this regard is simply incorrect. The narrow legal issue before the Court in this litigation is not whether the Florida Constitution can be amended by initiative but whether the two proposed constitutional amendlnents on redistricting are, in fact, legal and valid under Florida and federal law. Graham remains free to vote in the general election and to support various constitutional initiatives. However, he has no legitimate interest in being allowed to vote on proposed constitutional amendments that may be illegal and invalid. Plainly, the allegations contained in Graham's Motion to Intervene fall far short of establishing the requisite "interest" in the narrow scope of this litigation so as to justify intervention. Simply put, this litigation is a narrowly-tailored and time-sensitive challenge to the legal and procedural validity of two proposed constitutional amendments currently set to be placed on the November 2010 general election ballot. In his Motion to Intervene, Graham has failed to establish any special interest or personal right, aside from the right to participate in the initiative process as millions of other Florida citizens have (not the legal process of detennining the validity of proposed constitutional amendments), that would make his participation in the narrow legal issue presented by this case necessary. Absent such a direct showing, Graham is not entitled to intervene into this case as he will not gain or lose by legal operation of a judgment herein. See Kissoon, MD. v. Araujo, 849 So.2d 426 (Fla. 1st DCA 2003) Indeed, Grahams' proffered support and desire to vote for the proposed constitutional amendments at issue, should they be found to be legal and placed on the ballot, is the kind of contingent and indirect interest that has been found to be wholly inadequate to support v Page 3 of 6 Appendix page 3

8 intervention. See Stefanos v. Rivera-Berrios, supra. Additionally, GrahalTI, in his individual capacity, is not a proper party-defendant to assert a claim relative to the ministerial responsibilities of the Secretary of State relative to placing the proposed constitutional amendments at issue onto the 2010 general election ballot, nor is he, solely as a Florida voter, a proper party to defend the validity and constitutionality of these proposed amendments which seek to vastly alter the reapportionment responsibilities of the Florida Legislature. See YH v. F.L.H supra. It should be noted that Graham serves as an Honorary Co-Chair of Fair Districts Florida, a political organization that sponsored the proposed constitutional amendments at issue. Graham's status within the organization that sponsored the Amendments at issue raises serious questions as to whether FDF is entitled to intervene into the case at bar. However, since Fair Districts Florida has not yet sought intervention into this litigation, the Florida Senate will not address their ability to do so at this juncture. Should Fair Districts Florida seek intervention through Graham or others subsequent to Graham's instant application, the Florida Senate expressly reserves the right to file supplemental memorandums of law relative to whether Fair Districts Florida possesses a sufficient "interest" in this litigation to justify fonnal intervention. WHEREFORE, the Florida Senate respectfully requests that this Honorable Court enter an Order denying the Motion of BOB GRAHAM to Intervene as a Defendant, and for all such other relief as this Court deems just and proper v I Page 4 of 6 Appendix page 4

9 CERTIFICATE OF SERVICE I HEREB Y CERTIFY that a true and correct copy of the foregoing motion was furnished ' +~ by elnail and U.S. mail to the counsel of record listed below this [ 7 day of June, TRIPP SCOTT, P.A. Counsel for Intervenor, the Florida Senate 110 Southeast Sixth Street 15 th Floor Fort Lauderdale, Florida Tel: (954) Fax: (954) and 200 West College Avenue, Suite 216 Tallahassee, FL Tel: (850) Fax: (850) ~ AZ;:-J;L fu ] ES A. SCOTT, Esq. jas@trippscott.com Florida Bar No EDWARD 1. POZZUOLI, Esq. ejp@trippscott.com Florida Bar No STEPHANIE ALEXANDER, Esq. sda@trippscott.com Florida Bar No BRADY 1. COBB, Esq. bjc(q),trippscott.colti Florida Bar No vl994547,0001 Page 5 of 6 Appendix page 5

10 Corrine Brown and Mario Diaz-Balmi et al v. Dawn K. Roberts, et al. Case No.: CA-1824 Service List Attorneysfor Plaintiff, Roberts Stephen M. Cody, Esq S.W. 82 Court Palmetto Bay, FL (305) (305) (facsimile) com Attorneysfor The Florida House of Representatives George N. Meros, Jr., Esq. Allen C. Winsor, Esq. Andy Bardos, Esq. GrayRobinson, P.A. 301 S. Bronough Street, Suite 600 (32301) P.O. Box Tallahassee, FL Co-Counselfor The Florida House of Representatives Miguel DeGrandy, Esq. 800 Douglas Road Suite 850 Coral Gables, FL (305) (305) (facsimile) Attorneysfor Proposed Intervenor) Graham Ronald G. Meyer, Esq. Jennifer S. Blohm, Esq. Lynl1 C. Hearn, Esq. Meyer, Brooks, Demma and Blohn1, P.A. 131 N. Gadsden Street (32302) P.O Box 1547 Tallahassee, FL (850) (850) (facsimile) Mark Henon, Esq. Robert 1. Telfer, III, Esq. Messer Caparello & Self 2618 Centennial Place (32308) P.O. Box Tallahassee, FL (850) (850) (facsimile) COIn Counselfor Defendant) Roherts Michael G. Tanner, Esg. Tanner Bishop One Independent Drive Suite 1700 Jacksonville, FL (904) (904) (facsimile) v J Page 6 of 6 Appendix page 6

11 IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA CIRCUIT CIVIL DIVISION CORRINE BROWN and MARlO DIAz-BALART, Plaintiffs, and FLORIDA HOUSE OF REPRESENTATIVES and FLORIDA SENATE, Intervening Plaintiffs, v. Case No CA-1824 DAWN K. ROBERTS, in her capacity as Interim Secretary of State of the State of Florida, Defendant, and BOB GRAHAM, Intervening Defendant _./ ORDER TERMINATING DISCOVERY AND CANCELING TRIAL This cause Calne before the Court on the Defendants' and Intervening Defendants' Motions to Stay Discovery. The Court has considered the motions, the parties' responses, and argument of counsel. The Court finds and orders the following: 1. The Court will not hold a trial in this case or consider live testimony. 2. Discovery is therefore tenninated. Appendix page 7

12 ORDERED this ~~fjuly, 2010, at Leon County, Florida. Copies to Counsel of Record 2 Appendix page 8