IN THE SUPREME COURT OF FLORIDA. CASE NO. SC L.T. No. DO LAKELAND REGIONAL MEDICAL CENTER, INC., Petitioner,

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC L.T. No. DO LAKELAND REGIONAL MEDICAL CENTER, INC., Petitioner, v. STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION; WINTER HAVEN HOSPITAL, INC.; DELRAY MEDICAL CENTER, INC.; TENET HEALTHSYSTEMS HOSPITALS, INC.; MARTIN MEMORIAL MEDICAL CENTER, INC.; BETHESDA HEALTHCARE SYSTEM, INC.; BOCA RATON COMMUNITY HOSPITAL, INC.; INDIAN RIVER MEMORIAL HOSPITAL, INC.; and TARPON SPRINGS HOSPITAL FOUNDATION, INC. Respondents ANSWER BRIEF ON PETITIONER S BRIEF ON JURISDICTION Douglas B. MacInnes Thomas F. Panza Florida Bar No Florida Bar No OFFICE OF THE ATTORNEY Mark A. Hendricks GENERAL Florida Bar No PL-01, The Capital Joseph Arena Tallahassee, FL Florida Bar No (850) PANZA, MAURER & MAYNARD P.A. Attorney for State of Florida, Bank of America Building, 3rd Floor Agency for Health Care 3600 North Federal Highway Administration Fort Lauderdale, FL (954) Attorneys for Appellee Hospitals

2 TABLE OF CONTENTS TABLE OF AUTHORITIES...ii STATEMENT OF THE CASE AND FACTS...1 SUMMARY OF THE ARGUMENT...1 LEGAL ARGUMENT AND SUPPORTING AUTHORITY...2 I. THIS CASE DOES NOT PROVIDE A BASIS FOR THE EXERCISE OF DISCRETIONARY JURISDICTION a. There is No Basis for Discretionary Review Pursuant to Rule 9.030(b)(1)(A)(i) b. There is No Basis for Discretionary Review Pursuant to Rule 9.030(b)(1)(A)(ii) II. SHOULD THE COURT FIND THIS CASE DOES PROVIDE A BASIS FOR DISCRETIONARY REVIEW, THE COURT SHOULD NONETHELESS EXERCISE ITS DISCRETION TO DECLINE REVIEW BECAUSE THE PETITIONER HAS FAILED TO SHOW A NEED FOR THE COURT TO RESOLVE A BROAD LEGAL ISSUE OR POLICY QUESTION CONCLUSION...6 CERTIFICATE OF SERVICE...6 CERTIFICATE OF COMPLIANCE...8 i

3 TABLE OF AUTHORITIES Cases: Page(s): Armstrong v. City of Tampa, 106 So.2d 407 (Fla. 1958)... 4 Cantor v. Davis, 489 So.2d 18 (Fla. 1986)... 3 Davis v. North Shore Hosp., 452 So.2d 937 (Fla. 3d DCA 1983)... 3 Lakeland Regional Medical Center, Inc. v. State, Agency for Healthcare, 917 So. 2d 1024 (Fla. 1st DCA 2006)... 1, 3 Ogle v. Pepin, 273 So.2d 391 (Fla. 1973)... 4 State v. Warren, 558 So.2d 55 (Fla. 2d DCA 1990)... 2 Warren v. State, 572 So.2d 1376 (Fla. 1991)... 2 Constitutions, Statutes and Codes: Fla. Const. Art. V 3(b)(3)... 1, 4, 6 Fla. Stat (2)... 2 Fla. Stat , 3 Fla.R.App.P (b)(1)(A)(i)... 1, 2, 3 Fla.R.App.P (b)(1)(A)(ii)... 1, 3, 4 Other Authorities: Philip J. Padovano, Florida Appellate Practice 27.4 (2006)... 5 ii

4 STATEMENT OF THE CASE AND FACTS Here, the Petitioner seeks, pursuant to the Fla.R.App.P (b)(1)(A)(i) and (ii) and Fla. Const. Art. V 3(b)(3), discretionary review jurisdiction of the Florida Supreme Court to review the decision of the 1 st DCA in Lakeland Regional Medical Center, Inc. v. State, Agency for Healthcare, 917 So. 2d 1024 (Fla. 1st DCA 2006). More specifically, the Petitioner erroneously claims this Court has discretionary jurisdiction because the 1 st DCA expressly declared valid a state statute and expressly construed a provision of the state and federal constitution in rendering its opinion in this matter. See Petitioner s Notice to Invoke Discretionary Jurisdiction (page 4, lines 9-10) and Petitioner s Brief on Jurisdiction (hereinafter referred to as Petitioner s Brief ) (page 3, lines 15-21). SUMMARY OF THE ARGUMENT The Court must hold this case does not provide a basis for the exercise of discretionary jurisdiction pursuant to Florida Rules of Appellate Procedure 9.030(b)(1)(A)(i) and (ii) and Fla. Const. Art. V 3(b)(3). Even if the Court should find this case does provide such a basis, the Court should nonetheless exercise its discretion to decline review because the remaining Respondents agree with the position of Respondent WINTER HAVEN HOSPITAL, INC. set forth in its brief. 1

5 More specifically, Petitioner LAKELAND REGIONAL MEDICAL CENTER, INC. has failed to show a need for the Court to resolve a broad legal issue or policy question and that the impact of these appeals will only directly affect Petitioner LAKELAND REGIONAL MEDICAL CENTER, INC. and Respondent WINTER HAVEN HOSPITAL, INC. Further, in its brief, Petitioner has merely argued that the district court erred in affirming the lower court s granting of Respondent s Motion for Summary Judgment. The agency, STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION nonetheless prepares this response pursuant to its duties. LEGAL ARGUMENT I. THIS CASE DOES NOT PROVIDE A BASIS FOR THE EXERCISE OF DISCRETIONARY JURISDICTION a. There is No Basis for Discretionary Review Pursuant to Rule 9.030(b)(1)(A)(i) The Court must find it has no basis for discretionary review pursuant to Rule 9.030(b)(1)(A)(i), more specifically, the District Court did not expressly declare valid a state statute. In Warren v. State, 572 So.2d 1376 (Fla. 1991), this Court stated, [w]e review State v. Warren, 558 So.2d 55 (Fla. 2d DCA 1990) (decision quashed by Warren v. State, 572 So.2d 1376 (Fla. 1991), because it expressly found Fla. Stat , constitutional. The express language in the 2d DCA s opinion this Court 2

6 referred to is as follows: we expressly declare the validity of section , Florida Statutes (1987), in anticipation that the supreme court will exercise its discretionary jurisdiction to review the constitutionality of this statute. No such express language is found in the 1 st DCA s opinion in this case. More specifically, the 1 st DCA stated we affirm the trial court's ruling that the 2004 statutory changes to Fla. Stat (2), do not violate due process or equal protection. Lakeland Regional Medical Center, Inc. v. State, Agency for Healthcare, 917 So. 2d 1024 (Fla. 1st DCA 2006). Therefore, this Court must find it has no basis for discretionary review pursuant to Rule 9.030(b)(1)(A)(i). In Davis v. North Shore Hosp., 452 So.2d 937 (Fla. 3d DCA 1983), the district court stated the statute meets constitutional muster. This Court in Cantor v. Davis, 489 So.2d 18 (Fla. 1986), held such language to constitute an express declaration of validity of a statute, thus granting itself discretionary review jurisdiction. No such language exists in the 1st DCA opinion. b. There is No Basis for Discretionary Review Pursuant to Rule 9.030(b)(1)(A)(ii) The Court must find it has no basis for discretionary review pursuant to Rule 9.030(b)(1)(A)(ii), more specifically, the District Court did not construe a provision of the State or Federal constitution. 3

7 In determining whether an opinion construes a provision of a State or Federal Constitution pursuant to Rule 9.030(b)(1)(A)(ii), this Court in Ogle v. Pepin, 273 So.2d 391, 393 (Fla. 1973), revitalized the rule enunciated in Armstrong v. City of Tampa, 106 So.2d 407 (Fla. 1958): the mere fact that a constitutional provision is indirectly involved in the ultimate judgment of the trial court does not in and of itself convey jurisdiction by direct 1 appeal to this court. We agree with those courts which hold that in order to sustain the jurisdiction of this court there must be an actual construction of the constitutional provision. That is to say, by way of illustration, that the trial judge must undertake to explain, define or otherwise eliminate existing doubts arising from the language or terms of the constitutional provision. It is not sufficient merely that the trial judge examine into the facts of a particular case and then apply a recognized, clear-cut provision of the Constitution. Here, the 1 st DCA did exactly that - - it just merely examined into the facts of the case and then applied a recognized, clear-cut provision of the Constitution, specifically the due process clause (in affirming trial court s ruling that due process was not violated because a claim to reduce exposure to competition is a not a property interest) and equal protection clause (Petitioner couldn t show the statute could not rationally advance a legitimate government objective). For these reasons, this Court should not grant discretionary review pursuant to Rule 9.030(b)(1)(A)(ii). 1 Subdivision (a)(1)(a)(ii) has been substantively changed in accordance with amended article V, section 3(b)(1), Florida Constitution (1980), to eliminate the court's mandatory appellate review of final orders of trial courts and decisions of district courts of appeal initially and directly passing on the validity of a state statute or a federal statute or treaty, or construing a provision of the state or federal constitution. 4

8 II. SHOULD THE COURT FIND THIS CASE DOES PROVIDE A BASIS FOR DISCRETIONARY REVIEW, THE COURT SHOULD NONETHELESS EXERCISE ITS DISCRETION TO DECLINE REVIEW BECAUSE THE PETITIONER HAS FAILED TO SHOW A NEED FOR THE COURT TO RESOLVE A BROAD LEGAL ISSUE OR POLICY QUESTION Even if the Court should find this case does provide a basis for discretionary review pursuant to Fla.R.App.P (b)(1)(A)(i) or (ii), the Court should nonetheless exercise its discretion to decline review because the Petitioner has failed to show a need for the Court to resolve a broad legal issue or policy question and instead in its brief has merely argued that the district court erred in affirming the lower court s granting of Respondent s Motion for Summary Judgment. Philip J. Padovano, Florida Appellate Practice 27.4 (2006). Specifically, Petitioner is seeking this Court to hold the 1 st DCA erred in holding there is no due process violation because Lakeland Regional has no constitutionally protected property interest in pursuing its non-final administrative hearing challenge to Winter Haven Hospital s CON application. See Opinion, page 10. Essentially, Petitioner is seeking this Court s discretionary review in an attempt to reduce its exposure to competition and fails to make any policy argument against the amendment. Then again, it would be difficult, if not impossible, for Repondent to argue the policy behind the subject amendment, to 5

9 remedy the lack of appropriate and timely access to adult cardiac care in the State, makes it necessary for this Court to resolve a broad legal issue or policy question. CONCLUSION The Court must hold this case does not provide a basis for the exercise of discretionary jurisdiction pursuant to Fla.R.App.P (b)(1)(A)(i) and (ii) and Fla. Const. Art. V 3(b)(3). Should the Court find this case does provide such a basis, the Court should nonetheless exercise its discretion to decline review because the Petitioner has failed to show a need for the Court to resolve a broad legal issue or policy question and instead in its brief has merely argued that the district court erred in affirming the lower court s granting of Respondent s Motion for Summary Judgment. CERTIFICATE OF SERVICE I HEREBY CERTIFY that the foregoing Appellees Answer Brief was served via U.S. Mail upon the following: Attorney for Appellant LAKELAND REGIONAL MEDICAL CENTER, INC. Stephen Senn, Esq. Theodore W. Weeks IV, Esq. Peterson & Myers, PA Heritage Plaza 225 East Lemon Street, Suite 300 P.O. Box Lakeland, FL Attorney for Appellee WINTER HAVEN HOSPITAL, INC. Geoffrey D. Smith, Esq. 6

10 Cassandra Pasley, Esq. Blank, Meenan & Smith, P.A. 204 South Monroe Street Tallahassee, FL Attorney for Appellee TARPON SPRINGS HOSPITAL FOUNDATION INC. Geoffrey D. Smith, Esq. Kellie Scott, Esq. Blank, Meenan & Smith, P.A. 204 South Monroe Street Tallahassee, FL Attorney for Appellee DELRAY MEDICAL CENTER C. Gary Williams, Esq. Stephen C. Emmanuel, Esq. AUSLEY & McMULLEN P.O. Box 391 Tallahassee, FL this 9th day of March OFFICE OF THE ATTORNEY GENERAL PL-01,The Capitol Tallahassee, Florida (850) PANZA, MAURER & MAYNARD, P.A. Bank of America Building, 3 rd Floor 3600 North Federal Highway Fort Lauderdale, FL (954) By: /s/ DOUGLAS MACINNES FLA. BAR NO By: THOMAS F. PANZA FLA. BAR NO MARK A. HENDRICKS FLA. BAR NO JOSEPH ARENA FLA. BAR NO

11 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that Appellees Answer Brief, which is submitted in Times New Roman 14-point font, complies with the font requirement of Florida Rule of Appellate Procedure 9.210(a)(2). PANZA, MAURER & MAYNARD, P.A. Bank of America Building, 3 rd Floor 3600 North Federal Highway Fort Lauderdale, FL (954) By: THOMAS F. PANZA FLA. BAR NO MARK A. HENDRICKS FLA. BAR NO JOSEPH ARENA FLA. BAR NO _ F:\CLIENT \1331\ \Supreme Court Brief\Supreme Court Answer Brief.doc 8