IN THE SUPREME COURT OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO.: SC Lower Tribunal No.: 4D JOHN RHAMES, DAN MATHIS, and ROBERT MARTO, vs. Petitioners, CITY OF LAUDERHILL, FLORIDA, a Municipality, Respondent. / On Review from the District Court of Appeal, Fourth District, State of Florida RESPONDENT'S BRIEF ON JURISDICTION VANESSA A. REYNOLDS, ESQ. JANINE R. KALAGHER, ESQ. CONRAD & SCHERER, LLP Attorneys for Respondent P.O. Box 14723

2 Fort Lauderdale, FL Phone: (954) Fax: (954)

3 TABLE OF CONTENTS TABLE OF CITATIONS... ii PREFACE...iii STATEMENT OF THE CASE AND FACTS... 1 JURISDICTIONAL STATEMENT... 3 SUMMARY OF ARGUMENT... 3 ARGUMENT... 4 I. THE FOURTH DISTRICT'S DECISION DOES NOT CONSTRUE A PROVISION OF THE CONSTITUTION SO AS TO CONFER JURISDICTION ON THIS COURT... 4 II. THE FOURTH DISTRICT'S DECISION DOES NOT CONFLICT WITH SEVERAL DECISIONS OF THE THIRD DISTRICT COURT OF APPEAL... 7 CONCLUSION... 9 CERTIFICATE OF SERVICE CERTIFICATE OF TYPE SIZE AND STYLE i-

4 TABLE OF CITATIONS Case Name Page No. Armstrong v. Tampa, 106 So. 2d 407 (Fla. 1958)... 4, 5, 6, 7 Board of County Commissioners of Dade County v. Boswell, 167 So. 2d 866 (Fla. 1964)... 5 Callendar v. State, 181 So. 2d 529 (Fla. 1966)... 6 Dade County v. State, 39 S.E.2d 473 (Ga. 1946)... 5 First Union National Bank v. Turney, 832 So. 2d 768 (Fla. 1st DCA 2002)... 7 Kincaid v. World Insurance Co., 157 So. 2d 517 (Fla. 1963)... 8 Kirk v. Baker, 224 So. 2d 311 (Fla. 1969)... 5 N & L Automobile Parts Co. v. Doman, 117 So. 2d 410 (Fla. 1960)... 8 Ogle v. Pepin, 273 So. 2d 391 (Fla. 1973)... 5 Rojas v. State, 288 So. 2d 234 (Fla. 1973)... 5 The Florida Star v. B.J.F., 530 So. 2d 286 (Fla. 1988) ii-

5 OTHER AUTHORITIES Page No. Police Officers Bill of Rights, , Fla. Stat Rule 9.030(a)(2)(A), Fla.R.App.P.... 3, 4, 7 -iii-

6 PREFACE This brief is submitted on behalf of Respondent, the CITY OF LAUDERHILL, the Defendant and Appellant below. Petitioners, JOHN RHAMES, DAN MATHIS, and ROBERT MARTO, seek to invoke this Court's discretionary jurisdiction to review a decision of the Fourth District Court of Appeal which they contend construes the substantive due process clause of the Constitution, and expressly and directly conflicts with opinions of the Third District Court of Appeal. The Petitioners, JOHN RHAMES, DAN MATHIS, and ROBERT MARTO, are referred to as Plaintiffs, Petitioners or, collectively, as the Officers. The Respondent, the CITY OF LAUDERHILL, is referred to as Defendant, Respondent or as the City. (I.B.) references are to Petitioners' Brief on Jurisdiction. (Op.) references are to the Opinion of the Fourth District Court of Appeal. Unless otherwise indicated, all emphasis is supplied by the writer. -iv-

7 STATEMENT OF THE CASE AND FACTS This appeal arises from the City of Lauderhill s decision to reorganize its police department. Because the police department s then existing organization was flat and unresponsive, the City eliminated certain positions and instituted a more traditional police hierarchy. (Op. at 2) As part of the reorganization, the City s Commission voted to eliminate the position of Lead Police Officer ( LPO ) and to create the rank of sergeant. (Op. at 2-3) The City s Police Chief allegedly told Officer Marto, one of the Petitioners, that the LPOs would be grandfathered in as sergeants. (Op. at 3) Following the Commission s elimination of the LPO designation, however, the Police Chief required any officer who wanted to be promoted to sergeant, including the former LPOs, to meet the criteria for sergeant, pass qualifying examinations, and be placed on an eligibility list for consideration. (Op. at 2-3) Although the Officers, all former LPOs, objected to having to take a written test to be promoted to sergeant, they nonetheless applied to become sergeants. (Op. at 3) Of the three, only Rhames was promoted to sergeant. (Op. at 3) The Officers sued the City for failing to make them sergeants, and asserted claims for procedural and substantive due process violations, and violation of the Police Officers Bill of Rights, , Fla. Stat. (Op. at 1, 4) At the close of the evidence at trial, the court submitted the Officers substantive due process and Police Officers Bill of Rights claims to the jury. (Op. at 4) The court declined to submit the procedural due process claim to the jury based on its determination that the Officers did not timely prepare an appropriate jury instruction on the issue. (Op. at 9) The jury -1-

8 returned a verdict in favor of the Officers, and the City appealed. The Officers crossappealed the denial of their motion for a declaratory judgment that would have required the City to promote them to the rank of sergeant. In its well-reasoned opinion, the District Court discussed the differences between procedural and substantive due process, and the standards applicable to each. It found that the City Commission s resolution abolishing the LPO position satisfied the rational basis test applicable to a substantive due process challenge to legislative action. (Op. at 8) The court further determined that the basis of the Officers challenge was not the legislative action of the Commission, but the Police Chief s decision that stripped [them] of their positions. (Op. at 8) Concluding that the case was, at its heart, an employment termination case arising from an executive act, the court found that the Officers employment rights were not protected by the substantive component of the Due Process Clause. (Op. at 8) Thus, said the court, there was no legal basis for the Officers substantive due process claim to go to the jury. (Op. At 8-9) Turning to the Officers procedural due process claim, the court found that the trial court s decision to not submit that claim to the jury was well within the trial court s discretion. (Op. at 9) Although the court observed that the Officers had not cross-appealed the trial court s decision on that issue, the court did not state that the issued was waived nor, obviously, did it decline to address the issue on its merits. (Op. at 9) The District Court reversed the final judgment and remanded the case to the trial court with directions that judgment be entered in favor of the City. (Op. at 9) -2-

9 Unhappy with this outcome, the Officers petitioned the District Court for rehearing and for rehearing en banc. Their petition was denied. JURISDICTIONAL STATEMENT Petitioners seek to invoke this Court's discretionary jurisdiction under Rule 9.030(a)(2)(A)(ii) and (iv), Fla.R.App.P. As set forth below, this Court's discretionary jurisdiction cannot be invoked because the District Court s opinion did not construe the substantive due process clause of the United States Constitution, and because there is no conflict between the decision of the Fourth District Court of Appeal and the cited decisions of Third District Court of Appeal. SUMMARY OF ARGUMENT The Officers assertion of discretionary jurisdiction is based on their mischaracterizations of the District Court s decision. In support of their claim that the District Court s decision construes the substantive due process clause of the Constitution, the Officers argue that the court concluded that the resolution at issue was a non-legislative or executive act and that the substantive due process clause thus afforded the Officers no protection. Even the most cursory reading of the court s opinion demonstrates that the District Court merely reviewed and discussed existing law, then applied the facts of the case to established case law regarding substantive due process. Because there is no basis for the Officers contention that the District Court construed the substantive due process -3-

10 clause of the United States Constitution, this Court should decline to accept jurisdiction. The Officers also contend that District Court refused to address their procedural due process claim on the merits because they had failed to cross-appeal the issue. To the contrary, the court specifically stated that it reviewed the trial transcript and determined that the trial court had not abused its discretion with respect to the Officers procedural due process claim. While the District Court did note, in dictum, that the Officers had not cross-appealed that issue, it clearly did not base its holding on that observation. The court s decision, therefore, did not conflict with any of the decisions cited by the Officers. This Court should decline to exercise its discretionary jurisdiction on that basis, as well. ARGUMENT I. THE FOURTH DISTRICT'S DECISION DOES NOT CONSTRUE THE SUBSTANTIVE DUE PROCESS CLAUSE OF THE CONSTITUTION SO AS TO CONFER JURISDICTION ON THIS COURT. Rule 9.030(a)(2)(A)(ii), Fla.R.App.P., provides that the discretionary jurisdiction of the Supreme Court may be sought to review decisions of district courts of appeal that expressly construe a provision of the state or federal constitution. In order to confer jurisdiction on the Supreme Court under Rule 9.030(a)(2)(A)(ii), it is necessary that the challenged decision actually construe, as distinguished from apply, a controlling provision of the Constitution. Armstrong v. Tampa, 106 So. 2d 407,

11 (Fla. 1958); Ogle v. Pepin, 273 So. 2d 391 (Fla. 1973). As this Court stated in Armstrong: Id. at 409. 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, clearcut provision of the Constitution. Thus, actual construction of the language of the Constitution, either state or federal, must be involved to justify the jurisdiction of the Supreme Court. Ibid. The word "construction" in this context contemplates an interpretation of the meaning of the language of some constitutional provision which is doubtful either by its own content or as the result of some decision of the Supreme Court of the state or of the United States. Armstrong 1, supra, citing Dade County v. State, 39 S.E.2d 473 (Ga. 1946). It is not sufficient to point to a set of facts and contend that the court failed to correctly apply a recognized provision of the Constitution. To confer jurisdiction, it is necessary that the court actually construe or interpret a section of the Constitution 1 The Supreme Court later qualified and then departed from the rule set forth in Armstrong. See Board of County Commissioners of Dade County v. Boswell, 167 So. 2d 866 (Fla. 1964); Kirk v. Baker, 224 So. 2d 311 (Fla. 1969). However, the Armstrong rule was revitalized in Ogle v. Pepin, 273 So. 2d at 393 ( we do not have jurisdiction to decide this appeal because the decision below failed to explain or define any constitutional terms or language as required by the Armstrong rule revitalized here ). -5-

12 and then apply its construction to the factual situation presented. See also Rojas v. State, 288 So. 2d 234 (Fla. 1973)(there must be a ruling by the trial court that which explains, defines or overtly expresses a view which eliminated some existing doubt as to a constitutional provision in order to support a direct appeal); Callendar v. State, 181 So. 2d 529, 532 (Fla. 1966)( we have consistently interpreted our constitution to deny this Court authority to entertain an appeal from an order of a district court unless such order either passed upon the validity of a statute or construed a constitutional provision ). In this case, the District Court merely reviewed and discussed existing law, then applied the facts of the case to established case law regarding substantive due process. The constitutional construction on which the Officers base their argument misstates the Opinion. Contrary to the Officers contention that, the District Court concluded that the City Commission's resolution [w]as a non-legislative or executive act (I.B. at 7), the court made no such conclusion. In fact, the court stated that, a substantive due process challenge to a legislative act is reviewed under a rational basis test. (Op. at 5) That statement simply reflects what the Armstrong court described as a recognized, clear-cut provision of the Constitution. Applying the facts before it to established case law regarding substantive due process, the District Court concluded that the Commission s resolution obviously satisfies the rational basis test. (Op. at 8) The Officers substantive due process claims thus failed on that basis, and not because the court found the City Commission s resolution abolishing the LPO position to be a non-legislative or executive act. -6-

13 Notwithstanding, the District Court found that the Officers challenge was not to the Commission s legislative act, i.e., the passage of the resolution, but to the executive decision of the Police Chief who refused to make them sergeants. (Op. at 8) Because, said the court, this case is, at its heart, an employment termination case arising from an executive act, there was no legal basis for the Officers substantive due process claim to go to the jury. (Op. at 8-9) There is nothing to support the Officers contention that District Court interpreted a section of the Constitution and then applied its construction to the factual situation presented. In accordance with the standard articulated in Armstrong, therefore, the District Court s opinion does not confer jurisdiction on this Court, and this Court should decline to accept jurisdiction. II. THE FOURTH DISTRICT'S DECISION DOES NOT CONFLICT WITH DECISIONS OF THE THIRD DISTRICT COURT OF APPEAL. Rule 9.030(a)(2)(A)(iv), Fla.R.App.P., provides that the discretionary jurisdiction of the supreme court may be sought to review decisions of district courts of appeal that expressly and directly conflict with a decision of another district court of appeal of or the supreme court on the same question of law. But review under that rule, which requires express and direct conflict, is unavailable "where the opinion below establishes no point of law contrary to a decision of the [Supreme] Court [of Florida] or another district court." First Union Nat'l Bank v. Turney, 832 So. 2d 768, 770 (Fla. 1st DCA 2002), quoting The Florida Star v. B.J.F., 530 So. 2d 286, -7-

14 289 (Fla. 1988). The constitutional standard is whether the decision of the District Court on its face collides with a prior decision of the Supreme Court or another district court on the same point of law so as to create an inconsistency or conflict among the precedents. Kincaid v. World Ins. Co., 157 So. 2d 517, 518 (Fla. 1963). Moreover, the Supreme Court will not look into the facts in order to determine whether a conflict exists. N & L Auto Parts Co. v. Doman, 117 So. 2d 410, 412 (Fla. 1960)( The question of a conflict is of concern to our court only in those cases where the opinion and judgment of the district court announces a principle or principles of law that are in conflict with a principle or principles of law of another district court or this Court. ). In their attempt to persuade this Court of its jurisdiction, the Officers mischaracterize the District Court's opinion regarding procedural due process. The District Court did, indeed, observe that the Officers did not cross-appeal the trial court's refusal to submit their procedural due process claim to the jury. (I.B. at 6; Op. at 9) The court did not, however, contrary to the Officers assertion, refuse to address the issue on the merits. (I.B. at 7) As the opinion clearly states, the District Court reviewed the transcript of the trial proceedings on October 19th and 22nd, 2001, and expressly found that the trial court's decision was well within its discretion. (Op. at 9) In each of the cases cited by the Officers, the reviewing court agreed to address a specific issue on the merits notwithstanding a party's failure to appeal that issue. Like the court in those cases, the District Court in this case also considered the issue -8-

15 on the merits here, procedural due process even though the Officers had not cross- appealed the issue. There is thus no conflict between the District Court's decision in this case and the decisions of the Third District cited by the Officers. This Court should therefore decline to accept jurisdiction based on a non-existent conflict between the district courts of appeal. CONCLUSION For the foregoing reasons, Respondent, the CITY OF LAUDERHILL, respectfully requests that this Court find that the Fourth District's decision does not construe the substantive due process clause of the United States Constitution, and that the decision does not directly and expressly conflict with the decisions of the Third District Court of Appeal cited by Petitioners, and that this Court decline to exercise its discretionary jurisdiction in this matter. Respectfully submitted, VANESSA A. REYNOLDS, ESQ. -9-

16 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via United States Mail to Thomasina H. Williams, ESQ., WILLIAMS &ASSOCIATES, P.A.,80 S.W. Eighth St., Suite 2805, Miami, FL 33130, Attorneys for Petitioners, this 6th day of May, CERTIFICATE OF TYPE SIZE AND STYLE The undersigned counsel certifies that the type and style used in this brief is 14 point Times New Roman. CONRAD & SCHERER, LLP Attorneys for Appellant 633 South Federal Highway P. O. Box Fort Lauderdale, FL Telephone: (954) Facsimile: (954) By: VANESSA A. REYNOLDS Florida Bar No JANINE R. KALAGHER Florida Bar No