IN THE SUPREME COURT FOR THE STATE OF FLORIDA. vs. L.T. No. 2D06-536

Transcription

1 IN THE SUPREME COURT FOR THE STATE OF FLORIDA JAMES MARION MOORMAN, as attorney for, and next friend of, L.A., a Child, and JAMES CALVIN INGRAM, Petitioners, CASE NO.: SC vs. L.T. No. 2D JANIE HATFIELD, Manager, Tenth Circuit Electronic Court Recording Office, and JANICE CONWAY, Manager, Twelfth Circuit Digital Court Recording Office, Respondents. / RESPONDENTS= ANSWER BRIEF ON JURISDICTION ON DISCRETIONARY REVIEW FROM THE SECOND DISTRICT COURT OF APPEAL WENDY S. LOQUASTO, ESQ. Florida Bar No FOX & LOQUASTO, P.A. 314 W. Jefferson St. Tallahassee, Florida Ph: (850) Fax: (850) SUSAN W. FOX, ESQ. Florida Bar No FOX & LOQUASTO, P.A. 112 N. Delaware Ave. Tampa, Florida Ph: (813) Fax: (813) Attorneys for Respondents

2 TABLE OF CONTENTS STATEMENT OF THE CASE AND OF THE FACTS...1 SUMMARY OF ARGUMENT...1 ARGUMENT...2 THIS COURT LACKS JURISDICTION TO REVIEW THE DISTRICT COURT DECISION Denial of Mandamus Is Not a Decision Affecting State Officers The Decision Affects Only Moorman as Appellate Public Defender Petitioners Are Making a Back Door Challenge to the Twelfth Circuit Court Reporting Plan Petitioners Concerns Should be Addressed Through Other Means...8 CONCLUSION...10 CERTIFICATE OF SERVICE...10 CERTIFICATE OF TYPEFACE COMPLIANCE...11 i

3 TABLE OF AUTHORITIES CASES Traffic School v. Chief Circuit Judge, Fourth Judicial Circuit, 734 So. 2d 413 (Fla. 1999)...7 American Foreign Service Ass n v. Garfinkel, 490 U.S. 153 (1989)...3 Bower v. Connecticut General Life Insurance Co., 347 So. 2d 439 (Fla. 3d DCA 1977)...9 Evans v. State, 229 So. 2d 261 (1969)...4 Gandy v. State, 846 So. 2d 1141 (Fla. 2003)...3 In re Florida Rule of Judicial Amministration--Court Reporting, 650 So. 2d 38 (Fla. 1995)...8 The Florida Bar v. Gold, 937 So. 2d 652 (Fla. 2006)...3 STATUTES Section (2), Florida Statutes (2005)...9 Section (2), Florida Statutes (2005)...9 Section (3), Florida Statutes (2005)...9 ii

4 OTHER AUTHORITIES Article 5, ' 3, Florida Constitution....2 Philip J. Padovano, Florida Appellate Practice ' 28.2, at (2006 ed.)...4 RULES Florida Rule of Appellate Procedure 9.040(c)...7 Rule of Judicial Administration 2.070(g)(3)...8 iii

5 STATEMENT OF THE CASE AND OF THE FACTS The facts properly considered in this jurisdictional brief are limited to the facts stated in the district court=s opinion. SUMMARY OF ARGUMENT Petitioners sought a writ of mandamus against the managers of the digital court reporting offices for the Tenth and Twelfth Judicial Circuits, to compel them to provide certain transcription services. The district court ruled that mandamus was inappropriate because Petitioners had not demonstrated a clear legal right to compel these respondents to provide the transcription service. In essence, the district court held that in neither of the two specific factual situations presented have the required elements for a writ of mandamus been shown. In Ingram v. State, an error in a transcript was presented; but once the matter was brought to the attention of Hatfield s office, a correction was made and the issue became moot. In the case of In re: The Interest of: L.A., Moorman sought to compel Conway to prepare a transcript of approximately one hour of recorded proceedings for inclusion in the record on appeal, yet declined to follow the Twelfth Circuit s administrative order requiring him to use independently available resources from his own funding to have the proceeding transcribed. This court lacks jurisdiction to review the district court decision for the following reasons: (1) the decision simply denies a petition for writ of mandamus 1

6 for failure to meet the threshold requirements for such a writ, and, as such, it rests on procedural grounds and does nothing to Aaffect@ a class of officers; (2) if the decision is read as Aaffecting@ state officers, it affects only one such officer, the public defender in the Twelfth Circuit; (3) the crux of the case, as stated in the Petitioner=s Jurisdictional Brief, is actually a challenge to an administrative order of the Twelfth Circuit, however, Petitioners never made a challenge to the administrative order; and (4) Petitioners should seek relief through rulemaking or other channels. ARGUMENT THIS COURT LACKS JURISDICTION TO REVIEW THE DISTRICT COURT DECISION 1. Denial of Mandamus Is Not a Decision Affecting State Officers The Supreme Court of Florida may review any decision of a district court of appeal that Aexpressly affects a class of constitutional or state officers.@ Art. 5, ' 3, Fla. Const. The decision of the district court in the present case does nothing more than deny a petition for writ of mandamus for failure to meet the threshold requirements for such a writ. Mandamus is a common law writ used only to require an official to perform specific duties that the official is charged by law with performing. If Petitioners arguments in favor of jurisdiction are to be accepted, the denial of any writ petition on any grounds would be reviewable in this court so long as one of the respondents 2

7 was a constitutional or state officer. This notion is contrary to the fundamental principle that the jurisdiction of this Court Aextends only to [a] narrow class of cases.@ Gandy v. State, 846 So. 2d 1141, 1143 (Fla. 2003). The concept of judicial restraint dictates that when a case may be resolved on limited grounds, the court will ordinarily refrain from proceeding to decide broad or constitutional questions. The Fla. Bar v. Gold, 937 So. 2d 652, 655 (Fla. 2006). The United States Supreme Court has endorsed and utilized this maxim as well, concluding that prior to reaching any broad or constitutional questions concerning government powers, courts must first consider other grounds for a decision. See Am. Foreign Serv. Ass n v. Garfinkel, 490 U.S. 153 (1989) (remanding case to federal district court and noting that Athe district court should not pronounce upon the relative constitutional authority of Congress and the Executive Branch unless it finds it is imperative to do so@ ). To treat the present case as one Aaffecting@ constitutional or state officers would expand the opinion of the district court far beyond its express terms. The present case was decided on the basis that Petitioners had not satisfied the elements that must be shown to justify issuance of a writ of mandamus. 1 As to 1 The elements required to be shown to justify issuance of a writ of mandamus are (i) the law must clearly impose on the respondent an indisputable duty to perform some act; (ii) the respondent or defendant must have failed or refused to perform that act after demand; (iii) the act sought to be compelled by the writ must be ministerial and not require the exercise of any discretion; (iv) the party seeking 3

8 Respondent Hatfield, a corrected transcript had been prepared, therefore, Petitioners could not show she failed or refused to perform an act she had a duty to perform or that Petitioners had no other adequate remedy. As to Conway, the court concluded that the law did not clearly impose on Conway an indisputable duty to prepare the transcript at issue, as she is only responsible for making digital recordings. A decision that rests on procedural grounds should not be broadly construed as Aaffecting@ a class of officers. In such a decision, the district court is simply adhering to fundamental legal requirements under existing law, not making a new ruling affecting a class of constitutional offices for purposes of supreme court jurisdiction. Evans v. State, 229 So. 2d 261 (1969) (holding decision of district court of appeal simply adhering to jurisdictional time limits is not one affecting a class of constitutional offices for purposes of supreme court's jurisdiction). The present decision is Amerely cumulative to existing law@ and does not qualify for this court s review. Florida Appellate Practice Manual ' 3.25 (Fla. Bar 6th ed. 2006). 2. The Decision Affects Only Moorman as Appellate Public Defender If the decision is read as Aaffecting@ state officers, it affects only one such the writ must have a clear legal right to compel performance of the act; and (v) the petitioner must have no other adequate or specific remedy. Philip J. Padovano, Florida Appellate Practice ' 28.2, at (2006 ed.). 4

9 officer, i.e., Moorman, as the appellate public defender for the Twelfth Circuit. By joining together two entirely unrelated issues, however, Petitioners have attempted to posture the present case as one affecting a Aclass@ of constitutional, i.e., the public defenders of the Tenth and Twelfth Circuits. The arguments presented have no real bearing on the Tenth Judicial Circuit and there is no remaining controversy there. The Ingram transcript issue is moot and the underlying case has been resolved. The L.A. issue as to funding for transcripts has not been shown to go beyond the Twelfth Circuit. In fact, Petitioner states that Athe crux of most of the issues is Athe [Twelfth Circuit] chief judge=s revenue enhancing administrative order [AO ].@ (IB at 6). As will be shown in the next argument below, the chief judge was not a party and there was no direct challenge to the administrative order. Pursuant to the administrative order, Conway is permitted to provide only a CD recording to Moorman, after which Moorman is required to retain a transcriptionist who prepares the transcript and files the transcript with the court, and to submit the transcription invoice to the Justice Administration Commission. The district court found that Moorman had not demonstrated a clear legal right to compel Conway (the digital court recording manager) to violate the administrative order by providing the transcription service requested by Moorman. The administrative order at issue in the Twelfth Circuit is referenced in the district court opinion, which states that the order Amay be viewed at 5

10 The administrative order establishes the court reporting plan for the Twelfth Circuit and explains that the digital recording office provides a CD instead of a typed transcript because there is no cost-sharing agreement in place in the Twelfth Circuit to retain the official court reporter to prepare transcripts, and the court system has not been funded to provide the public defender=s office with transcripts: Effective July 1, 2004, the Florida trial courts were no longer responsible to pay for the costs of transcripts, except those transcripts requested by trial judges or court staff. Prior to that date, funding for transcripts was provided by counties regardless of whether the requesting party was the state attorney, public defender, conflict counsel, or the court. However, Article V, Revision 7 of the Florida Constitution shifted the costs of court reporting and transcripts to the State of Florida. Funds to pay for transcripts are now allocated to the different entities (public defenders, state attorneys, and conflict counsel). [FN 4: The Florida Legislature has appropriated funding for this specific purpose through the General Appropriations Act. For FY 04-05, see Ch , Laws of Fla.; for FY 05-06, see Ch , Laws of Fla.] The Justice Administration Commission (hereafter AJAC@) pays the costs for transcripts as incurred from the allocation of funds made to the requesting entity. The courts have not been allocated funds to pay transcript costs incurred by the public defenders, state attorneys or conflict counsel. Accountability demands that they reimburse the state courts system for the transcription services provided by the courts system. [FN 5: See Supreme Court of Florida Commission on Trial Court Performance and Accountability, Court Reporting in Florida s Trial Courts Post- Revision 7; February 2005, p. 13.] Statewide, the State Attorney, Public Defender, and conflict counsel are all responsible for their own transcript costs. [FN 6: Sections (2); (2); and (3), Florida Statutes.] (e.s.) The order goes on to explain that, in the Twelfth Circuit, the state attorney and 6

11 public defender have a cost-sharing arrangement through which they contract with the Official Court Reporter for preparation of transcripts in felony cases only, but must hire their own transcriptionists in all other cases: In this circuit, the State Attorney and Public Defender contract with the Official Court Reporters for the preparation of transcripts in felony cases; however, they must use privately contracted transcriptionists or court reporters for transcription services to seek whatever savings may be realized in the marketplace with regard to transcribing the record of proceedings electronically recorded. The issues raised by Petitioners appear to involve only the Twelfth Circuit because of the inability to work out a cost-sharing arrangement. As such, Petitioners have not shown that a Aclass@ of officers is affected. 3. Petitioners Are Making a Back Door Challenge to the Twelfth Circuit Court Reporting Plan. While the district court may have jurisdiction to review by certiorari a claim that a chief judge has exceeded his or her authority by issuing an administrative order, see Traffic School v. Chief Circuit Judge, Fourth Judicial Circuit, 734 So. 2d 413 (Fla. 1999), no request for such review or effort to satisfy the requirements for such review was made. Arguably, the district court could have applied certiorari principles, rather than mandamus principles, in considering the petition under Florida Rule of Appellate Procedure 9.040(c), but such was not appropriate in the present case because the chief judges were not named as parties and there was no showing to meet any of the required elements of certiorari 7

12 review, nor did the petition contend that the chief judges exceeded their authority. This Court has emphasized that resolution of court reporting issues is a local matter best resolved by the chief judges: The Court believes that when individual circuits are given the latitude to develop a range of court reporting services that meet local needs, productivity and efficiency can be improved. The chief judges in each judicial circuit are in the best position to identify the needs of the court in their individual counties; to analyze the financial, technological, and personnel resources available; and to design a system for service delivery that addresses all these factors. In re Florida Rules of Judicial Administration--Court Reporting, 650 So. 2d 38, 39 (Fla. 1995) (emphasis added). As such, this court should not review issues related to the administrative order. 4. Petitioners Concerns Should be Addressed Through Other Means Florida Rule of Judicial Administration 2.070(g)(3) delegates to the chief judge of each circuit the duty to develop a plan for electronic reporting, and does not grant supervisory authority to the district courts of appeal. The district court had jurisdiction only to address whether Hatfield or Conway were refusing to perform their legal duties as digital court recorders. Petitioners had many other proper avenues to raise specific concerns about digital court reporting, but a writ issued by the district court to subordinate employees of the circuit court was not one of them. For example, Moorman could have filed a motion to compel in the Ingram or L.A. appeal. Or, Moorman could have advanced the cost of the one- 8

13 hour L.A. transcript and sought reimbursement. As to the broader concerns, Moorman could have initiated a change of rules through The Florida Bar Rules of Judicial Administration Committee. If unsuccessful at that level, Moorman could seek a rule change through The Florida Bar Board of Governors or directly with this court. As to the administrative order, Moorman could have challenged it by certiorari. Alternatively, Moorman might address his concerns directly to the Chief Judge, the Legislature, or to the Trial Court Budget Commission, Commission on Trial Court Performance and Accountability, or the Indigent Services Advisory Board, all of whom are working on these issues. On the cost issue, Moorman might negotiate cost-sharing agreements as most other public defenders have done. Sections (2), (2), and (3), Florida Statutes (2005), now specifically require the state attorney, public defender, and conflict counsel to be responsible for their own transcript costs. The Atranscribing of the trial court proceedings is not a function or service by the court or the clerk.@ Bower v. Conn. Gen. Life Ins. Co., 347 So. 2d 439, 440 (Fla. 3d DCA 1977). A variety of current reports confirm the general rule that, absent a cost-sharing agreement, each entity is responsible for its own costs. These include the prior Legislative Budget Requests, Trial Court Budget Commission minutes, Commission on Trial Court Performance and Accountability and Indigent Services Advisory Board reports. 9

14 Moorman disagrees with this concept, and the issue may ultimately be presented to this court through rulemaking or supervision of the court system, but the present case is not a proper one for the exercise of this court=s jurisdiction. CONCLUSION This court should decline to exercise discretionary jurisdiction. Respectfully submitted, WENDY S. LOQUASTO, ESQ. Florida Bar No FOX & LOQUASTO, P.A. 314 W. Jefferson St. Tallahassee, Florida Ph: (850) Fax: (850) SUSAN W. FOX, ESQ. Florida Bar No FOX & LOQUASTO, P.A. 112 N. Delaware Ave. Tampa, Florida Ph: (813) Fax: (813) Attorneys for Respondents CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished, by U.S. Mail, to: James Marion Moorman, Esq., Public Defender, Robert A. Young, Esq., General Counsel, Tenth Judicial Circuit, P. O. Box 9000-PD, Bartow, FL 33831; and to Richard M. Fishkin, Esq., Assistant Attorney General, Concourse Center #3, 3507 E. Frontage Road, Suite 200, Tampa, FL 33607, this day of June, Attorney 10

15 CERTIFICATE OF TYPEFACE COMPLIANCE I further certify that this brief is typed in Times New Roman 14-point font, which complies with the font requirements as set forth in Florida Rule of Appellate Procedure Attorney 11