IN THE SUPREME COURT OF FLORIDA CASE NO. : SC MICHAEL A. PIZZI, JR., Individually, Petitioner, -vs.-

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1 Filing # Electronically Filed 09/10/ :48:54 PM RECEIVED, 9/10/ :53:42, John A. Tomasino, Clerk, Supreme Court IN THE SUPREME COURT OF FLORIDA CASE NO. : SC MICHAEL A. PIZZI, JR., Individually, Petitioner, -vs.- THE HONORABLE RICK SCOTT, Governor of the State of Florida, Respondent. AMICUS CURIAE BRIEF OF THE TOWN OF MIAMI LAKES In support of the Position of the Respondent, Governor Rick Scott PETITION FOR WRIT OF MANDAMUS RAUL GASTESI, JR. Florida Bar No HAYDEE SERA Florida Bar No Gastesi & Associates, P.A NW 155th Street Miami Lakes, FL Telephone: rgastesi@gastesi.com hsera@gastesi.com JUAN-CARLOS PLANAS Florida Bar No Kurkin Brandes LLP NE 29th Avenue, Suite 303 Aventura, FL Telephone: jcplanas@kb-attorneys.com rrivera@kb-attorneys.com { ;1}

2 { ;1} GERALD B. COPE, JR. Florida Bar No KATHERINE E. GIDDINGS Florida Bar No ELIZABETH HERNANDEZ Florida Bar No Akerman, LLP 1 SE 3rd Avenue, 25th Floor Miami, FL Telephone: gerald.cope@akerman.com katherine.giddings@akerman.com elizabeth.hernandez@akerman.com

3 TABLE OF CONTENTS Page TABLE OF AUTHORITIES... ii IDENTITY OF AMICUS CURIAE AND ITS INTEREST IN THE CASE...1 ARGUMENT...2 PIZZI S SUSPENSION IS MOOT BECAUSE MIAMI LAKES HAS ELECTED A NEW MAYOR PURSUANT TO THE CITY CHARTER...2 CONCLUSION...8 CERTIFICATE OF SERVICE...9, 10 CERTIFICATE OF FONT COMPLIANCE { ;1}

4 TABLE OF AUTHORITIES Cases Page Amente v. Newman, 653 So. 2d 1030 (Fla. 1995)...6 Belcher Oil Co. v. Dade County, 271 So. 2d 118 (Fla. 1972)...6 Diamond Aircraft Industries, Inc. v. Horowitch, 107 So. 3d 362 (Fla. 2013)...4 Fagan v. Robbins, 96 Fla. 91, 117 So. 863 (Fla. 1928)...6 Florida League of Cities v. Smith, 607 So. 2d 397 (Fla. 1992)...2 Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452 (Fla. 1992)...4 Great Outdoors Trading, Inc. v. City of High Springs, 550 So. 2d 483 (Fla. 1st DCA 1989)...4 Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d 1273 (Fla. 2000)...6 School Board of Palm Beach County v. Survivors Charter Schools, Inc., 3 So. 3d 1220 (Fla. 2009)...5 Simmons v. State, 160 Fla. 626, 36 So. 2d 207 (1948)...6 Stock Building Supply of Florida, Inc. v. Soares Da Costa Construction Services, LLC., 76 So. 3d 313 (Fla. 3d DCA 2011)...4 Tappy v. State ex rel. Byington, 82 So. 2d 161 (Fla. 1955)...5 { ;1} ii

5 Florida Statutes , FLA. STAT....3, (6), FLA. STAT....passim (4), FLA. STAT....5 Rules and Regulations Rule 9.210(a)(2), FLA. R. APP. P...11 Other Towns of Miami Lakes Charter 2.5(c)(iv)...4 { ;1} iii

6 IDENTITY OF AMICUS CURIAE AND ITS INTEREST IN THE CASE Amicus Curiae, the Town of Miami Lakes, Florida ("Miami Lakes"), is a municipal corporation. On August 6, 2013, the Petitioner, Michael A. Pizzi, Jr. ("Pizzi"), was suspended from his position as Miami Lakes' Mayor by Florida Governor Rick Scott. On August 13, 2013, pursuant to the Town Charter, the Town Council of Miami Lakes passed Resolution , calling for a special election to complete Pizzi's term on October 1, On that day, the residents of Miami Lakes elected Mayor Wayne Slaton to serve out the remainder of Pizzi's term as Town Mayor. The petition at issue seeks a writ of mandamus from this Court directing the Governor to vacate a suspension from a position that has already been permanently filled in accordance with the Town Charter. Miami Lakes has a right and duty to uphold its Charter. Thus, it has a bona fide interest in this case, which directly implicates the integrity of its Charter. This amicus curiae brief supports the Governor's position that the election of a new mayor has rendered Pizzi's suspension moot. It also provides this Court with the perspective of the Town and the interpretation of its Charter, which are at the epicenter of this matter. { ;1}

7 ARGUMENT PIZZI'S SUSPENSION IS MOOT BECAUSE MIAMI LAKES HAS ELECTED A NEW MAYOR PURSUANT TO THE TOWN CHARTER. Pursuant to Miami Lakes' Charter, immediately upon Pizzi's suspension, Miami Lakes' Vice-Mayor became the acting and temporary Mayor. Because more than six months remained in Pizzi's term, the Charter mandated a special election be held to permanently fill the office of Mayor. On August 13, 2013, the Miami Lakes Council passed Resolution ("Resolution"), calling for a special election on October 1, 2013 to elect a new Mayor. At that election, the Miami Lakes' residents elected Wayne Slaton as their new Mayor. Pizzi now petitions for mandamus, asking this Court to direct the Governor to revoke Executive Order Number because Pizzi has been acquitted of the charges that led to his suspension. As explained in the Governor's Response and this amicus brief, Pizzi's argument is profoundly flawed. This Court should either deny his petition outright, or in the alternative, allow Pizzi to pursue declaratory judgment relief in circuit court. Pizzi's fundamental conundrum is that he is not entitled to mandamus relief. Florida law is well settled that mandamus may only be used to enforce a right that is both clear and certain, not to establish the existence of such a right. Florida League of Cities v. Smith, 607 So. 2d 397, 401 (Fla. 1992). Pizzi's petition does { ;1} 2

8 not establish a clear fundamental right; rather, it merely makes an argument for an interpretation of the law and Miami Lakes' Charter that (1) is incorrect, and (2) conflicts with the interpretations of both the Governor and Miami Lakes. At a minimum, clearly both the Governor and Miami Lakes have valid legal arguments as to why the Governor is not required to revoke the suspension order. Accordingly, a writ of mandamus cannot issue because Pizzi has failed to establish that revocation of the suspension order is merely ministerial. In addition to Pizzi's failure to establish a clear legal right to the relief sought, Pizzi is not entitled to relief because his suspension is now moot the office of Mayor has already been permanently filled by the election of his successor. Pizzi argues that section , Florida Statutes, requires the Governor to automatically revoke the suspension order because he was found not guilty of the charges that lead to his initial suspension. He asserts that such revocation is required as "a condition precedent to further action to be taken by Mr. Pizzi to obtain a restoration to the status he occupied before the Governor's suspension order." Reply to Resp. at 2. As the Governor's Response to the Petition explains, Pizzi's position ignores the last sentence of section (6), which provides: If, during the suspension, the term of office of the municipal official expires and a successor is either appointed or elected, such back pay, emoluments, or allowances shall only be paid for the duration of the term of office during which the municipal official was suspended { ;1} 3

9 under the provisions of this section, and he or she shall not be reinstated. (Emphasis added.) As this Court is well aware, the interpretation of a statute is a purely legal matter. Stock Building Supply of Florida, Inc. v. Soares Da Costa Construction Services, LLC., 76 So. 3d 313, 316 (Fla. 3d DCA 2011). A review of a statute must correspond with the plain meaning of the actual language contained therein. Diamond Aircraft Industries, Inc. v. Horowitch, 107 So. 3d 362, 367 (Fla. 2013). Examining the plain language of the statute will give effect to legislative intent. Id. Where possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another. Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452 (Fla. 1992). The unambiguous last sentence of section (6) makes clear that reinstatement of the suspended official is not an option once the official's term expires and a new officer is elected. Municipal ordinances and provisions of a city charter are interpreted under the same standard as state statutes. See Great Outdoors Trading, Inc. v. City of High Springs, 550 So. 2d 483, 485 (Fla. 1st DCA 1989). Section 2.5(c)(iv) of Miami Lakes' Charter is as equally unambiguous as the state statute. It states in relevant part: If the Mayor's position becomes vacant and six months or more remain in the unexpired term, a special election shall be held for the { ;1} 4

10 election of a new Mayor within 90 calendar days following the occurrence of the vacancy. Petitioner's App. at 84 (emphasis added). The Charter clearly states that the election is for a "new Mayor." It does not contemplate an election to a temporary seat. Accordingly, neither the Resolution, nor the ballot for the Mayoral election used the word "temporary". The voters in Miami Lakes could not have been expected to even contemplate that the winning candidate would simply be a place-holder pending Pizzi's then uncertain criminal trial outcome. For good reason because, under Florida Law, municipal charter requirements regarding terms of elected officers and the manner of their election can only be changed by referendum. See (4), Fla. Stat. Likewise, Pizzi's term, like any incumbent office holder, expired upon the election and qualification of his successor. See Tappy v. State ex rel. Byington, 82 So. 2d 161, 166 (Fla. 1955). The interpretation of a statute requires a "common sense" approach. School Board of Palm Beach County v. Survivors Charter Schools, Inc., 3 So. 3d 1220, 1235 (Fla. 2009). Here, the only proper interpretation of (6)'s plain language is that because Pizzi's term of office expired upon the election of a new mayor, the Governor is not required to revoke the suspension order because it is moot. Conversely, because no law barred Pizzi from running in the special { ;1} 5

11 election, and the action of not running for election carries the same result as losing the election, had Pizzi run in the special election for Mayor and lost, his asking to still be reinstated into office would be an absurd interpretation of the statute that courts are reluctant to embrace.. See Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d 1273 (Fla. 2000), Amente v. Newman, 653 So. 2d 1030 (Fla. 1995). In addition to there being no clear legal right to the relief sought and Pizzi's term of office having expired, under the circumstances of this case, section (6)'s use of the phrase "shall forthwith revoke the suspension" does not require the Governor to revoke the suspension. Florida courts recognize that the term "shall" is sometimes directory rather than mandatory, depending on the circumstances. See, e.g., Belcher Oil Co. v. Dade County, 271 So. 2d 118 (Fla. 1972). This is especially true when the term is used by the legislature in directing another branch of government to take action. As this Court recognized in Simmons v. State, 160 Fla. 626, 36 So. 2d 207 (1948) (quoting from Fagan v. Robbins, 96 Fla. 91, 117 So. 863 (Fla. 1928): The word 'shall' when used by the Legislature to prescribe the action of a court is usually a grant of authority, and means 'may,' and even if it be intended to be mandatory it must be subject to the necessary limitation that a proper case has been made out for the exercise of the power. { ;1} 6

12 In this case, where the felony charges resulted in a suspension and an election was held to fill the vacancy created by that suspension, section (6)'s use of the term "shall" must be read as directory rather than mandatory because revoking the suspension order is now moot. Contrary to Pizzi's contentions, revocation of the suspension is not a necessary predicate to Pizzi's attempts to seek other relief. For instance, section 's governing provision regarding back pay has nothing whatsoever to do with the Governor's revocation of the suspension and reinstatement. Section (6) states: "If the municipal official is acquitted... then the Governor shall forthwith revoke the suspension and restore such municipal official to office; and the official shall be entitled to and be paid full back pay...." Thus, two consequences for acquittal of a suspended municipal official exist under the statute. First, if the official is acquitted, the Governor may revoke the suspension and restore the official to office which in this case is legally impossible given Miami Lake's Charter, which required the position to be filled. Second, if the official is acquitted, he may be entitled to a limited amount of back pay. Back pay has nothing whatsoever to do with the Governor's revocation of the suspension. As noted above, at a minimum, clearly both the Governor and Miami Lakes have valid legal arguments as to why the Governor is not required to revoke the { ;1} 7

13 suspension order. Accordingly, a writ of mandamus cannot issue because Pizzi has failed to establish that revocation of the suspension order is merely ministerial. CONCLUSION Pizzi is no longer the Mayor of Miami Lakes. His term ended once Wayne Slaton was sworn into office and his suspension is now moot. Accordingly, any attempt by Pizzi to challenge the interpretation of either the Miami Lakes charter or the Florida Statutes, ultimately bars an action for mandamus because he has no clear rights under the law warranting enforcement and is merely asking this Court to define his rights. This Court should deny Pizzi's petition, allowing him, should he be so inclined, the opportunity to bring an action for declaratory relief in the circuit court. { ;1} 8

14 CERTIFICATE OF SERVICE The undersigned Counsel certifies that their amicus curiae brief was served by electronic filing on September 10, 2014, to the service list below. s/ Raul Gastesi, Jr. RAUL GASTESI, JR. Florida Bar No HAYDEE SERA Florida Bar No GASTESI & ASSOCIATES, P.A NW 155 th Street Miami Lakes, FL Telephone: s/ Juan-Carlos Planas JUAN-CARLOS PLANAS Florida Bar No KURKIN BRANDES LLP NE 29 th Avenue, Suite 303 Aventura, FL Telephone: s/ Gerald Cope GERALD B. COPE, JR. Florida Bar No KATHERINE E. GIDDINGS Florida Bar No ELIZABETH M. HERNANDEZ Florida Bar No AKERMAN, LLP 1 SE 3 rd Avenue, 25 th Floor Miami, FL Telephone: gerald.cope@akerman.com katherine.giddings@akerman.com elizabeth.hernandez@akerman.com 9

15 SERVICE LIST PETER ANTONACCI General Counsel Executive Office of the Governor The Capitol Tallahassee, FL THOMAS D. WINOKUR Executive Office of the Governor 400 South Monroe Street, Suite 209 Tallahassee, Florida Tel: (850) EDWARD R. SHOHAT JONES WALKER 201 S Biscayne Blvd., Suite 2600 Miami, FL Tel: ed@slsdefense.com eshohat@joneswalker.com RALF R. RODRIGUEZ PECKAR & ABRAMSON, P.C. 1 S.E. Third Avenue, Suite 3100 Miami, FL Tel: rrodriguez@pecklaw.com DAVID P. REINER, II REINER & REINER, P.A So. Dadeland Blvd., Suite 901 Miami, FL Tel: dpr@reinerslaw.com BENEDICT P. KUEHNE LAW OFFICE OF KUEHNE, P.A. 100 S.E. 2nd St., Suite 3550 Miami, FL Tel: ben.kuehne@kuehnelaw.com efiling@kuehnelaw.com MARK HERRON MESSER CAPARELLO & SELF, P.A Centennial Place Tallahassee, FL Tel: mherron@lawfla.com PETER D. WEBSTER CARLTON FIELDS 215 S. Monroe St., Ste. 500 Tallahassee, Florida Tel: PWebster@cfjblaw.com 10

16 CERTIFICATE OF FONT COMPLIANCE The undersigned Counsel certifies that this brief complies with the requirement of Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure. It is printed in Times New Roman 14-point font. s/ Raul Gastesi, Jr. RAUL GASTESI, JR. Florida Bar No HAYDEE SERA Florida Bar No GASTESI & ASSOCIATES, P.A NW 155 th Street Miami Lakes, FL Telephone: s/ Juan-Carlos Planas JUAN-CARLOS PLANAS Florida Bar No KURKIN BRANDES LLP NE 29 th Avenue, Suite 303 Aventura, FL Telephone: s/ Gerald Cope GERALD B. COPE, JR. Florida Bar No KATHERINE E. GIDDINGS Florida Bar No ELIZABETH M. HERNANDEZ Florida Bar No AKERMAN, LLP 1 SE 3 rd Avenue, 25 th Floor Miami, FL Telephone: gerald.cope@akerman.com katherine.giddings@akerman.com elizabeth.hernandez@akerman.com 11