IN THE SUPREME COURT OF FLORIDA CAPITAL COLLATERAL REGIONAL COUNSEL-MIDDLE REGION and JOHN W. JENNINGS, Petitioners. v. Case No. SC07-2447 LT Case No. 1D07-253 FLORIDA DEPARTMENT OF FINANCIAL SERVICES, Respondent. / AMENDED JURISDICTIONAL ANSWER BRIEF OF RESPONDENT STATE OF FLORIDA DEPARTMENT OF FINANCIAL SERVICES Richard T. Donelan, Jr. Attorney for Respondent Fla.Bar No. 198714 Chief Counsel State of Florida Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, FL 32399-4247 (850)413-3010 fax (850)413-3029
TABLE OF CONTENTS Table of Citations and Other Authorities...ii Preliminary Statement iv Summary of the Argument...1 Argument..2 Introduction..2 SATISFACTION OF THE JURISDICTIONAL STANDARD FOR DISCRETIONARY REVIEW OF A DISTRICT COURT OF APPEAL S DECISION HAS NOT BEEN DEMONSTRATED. Argument I..3 THE FIRST DISTRICT COURT OF APPEAL S DECISION HAS NOT BEEN SHOWN TO EXPRESSLY AFFECT A CLASS OF CONSTITUTIONAL OR STATE OFFICERS. Argument II.7 THE FIRST DISTRICT COURT OF APPEAL S DECISION HAS NOT BEEN SHOWN TO EXPRESSLY AND DIRECTLY CONFLICT WITH ANY DECISION OF ANOTHER DISTRICT COURT OR THIS COURT ON THE SAME QUESTION OF LAW. Conclusion..10 Certificate of Service and Compliance...10 i
TABLE OF CITATIONS AND OTHER AUTHORITIES Cases Aravena v. Miami-Dade County 928 So.2d 1163 (Fla.2006)... 8, 9 Askew v. Cross Key Waterways 372 So.2d 913 (Fla. 1979)... 7 Bush v. Schiavo 885 So.2d 321 (Fla. 2004)... 7 Capaletti Bros., Inc. v. Dept. of Transportation 362 So.2d 346 (Fla. 1 st DCA 1978).... 5 Chiles v. Children A, B. C. D, E. and F 589 So.2d 260 (Fla. 1991)... 7 Crossley v. State 596 So.2d 447, 449 (Fla. 1992)... 9 Crown Central Petroleum Corp. v. Standard Oil Co 142 So. 2d 731 (Fla. 1962)... 6 Dodi Publ. Co. v. Editorial Am. 385 So.2d 1369 (Fla. 1980)... 8 Fla. Dept. of Revenue v. Cummings 930 So.2d 604 (Fla. 2006)... 9 Fla. State Bd. of Health v. Lewis 149 So.2d 41, 42 (Fla. 1963)... 6 Jenkins v. State 385 So.2d 1356 (Fla. 1980)... 3, 8 Larson v. Harrison 142 So. 2d 727 (Fla. 1962)... 6 Lewis v. Bank of Pasco County 346 So.2d 53 (Fla. 1976)... 7 Spradley v. State 293 So.2d 697 (Fla. 1974).... 4, 9 The Florida Star v. B.J.F 530 So.2d 286, (Fla.1988)... 3,8 Statutes Section 11.062, Florida Statutes... 5 Section 120.52(1)(b)(1), Florida Statutes... 4 ii
Section 120.52(15), Florida Statutes... 3 Rules Fla. R.App.P. 9.030(a)(2)(A)(i-iv)..... 3 Constitutional Provisions Article II, 3, Fla. Const. (1968)...7 Article III, 1, Fla. Const. (1968).. 7 Article V, 3(b)(3) Fla, Const. (1968)....3, 8 iii
PRELIMINARY STATEMENT The following signals and abbreviations will be employed in this Jurisdictional Answer Brief: Respondent State of Florida Department of Financial Services will be referred to as the Department. Petitioner John W. Jennings, Capital Collateral Counsel for the Middle Region will be referred to as Mr. Jennings or CCRC-M. Petitioner Capital Collateral Regional Counsel- Middle Region will also be referred to as Mr. Jennings or CCRC-M. References to the Jurisdictional Initial Brief filed by the Appellees will be indicated by Jurisdictional Brief or the Brief, followed by the page number to which reference is made. The decision of the First District Court of Appeal which is the subject of the petition for review, Florida Department of Financial Services v. Capital Collateral Regional Counsel-Middle Region, 969 So.2d 527 (Fla. 1 st DCA 2007), will be referred to as the First District s decision or the decision. A copy of the decision is included in the Appendix. References to the decision will be to the page number of the decision as appended, e.g. (A-2). Unless otherwise indicated, all references to Florida Statutes are to Florida Statutes (2007). iv
SUMMARY OF THE ARGUMENT In order to obtain discretionary review of a decision of a district court of appeal, a petitioner must show that one of the four tests contained in Article V (b)(3) of the Florida Constitution applies. The Jurisdictional Brief fails to demonstrate any constitutional basis for discretionary review jurisdiction. The First District s decision reversed an erroneous DOAH order regarding what constitutes a rule under the APA. It did not affect a class of constitutional or state officers and therefore provide jurisdiction for review. The decision did not directly, and in some way exclusively, affect the duties, powers, validity, formation, termination, or regulation of a particular class of constitutional or state officers. The decision does not affect the authority or duties of the two CCRCs. It does not expands the liability of Section 11.062, Florida Statutes, or prohibit the retention of outside lobbyists by CCRCs. The decision does not remove Mr. Jennings or the other CCRC from the legislative to the executive branch; the decision explicitly declined to opine on whether a CCRC was a legislative agency. The decision does not affect the Commission on Capital Cases. Even if it did, the Commission is not a class of state officers; it is a single state 1
entity. Nor does the decision reduce the authority of the Legislature to pass legislation that creates legislative agencies. Plenary authority remains with the Legislature under Article III, Section 1 of the Florida Constitution. For conflict jurisdiction to vest, there must be some statement or citation that hypothetically could create conflict if there were another opinion reaching a contrary result. In the absence of an identified statement effectively establishing the point of law upon which the decision rests it is impossible to determine the existence of any express and direct conflict between the decision sought to be reviewed and any other appellate decision. The Brief offers a string cite of 10 cases as a body of decisional law with which the First District s decision is supposed to conflict, but it never explains where, why or how the supposed conflict occurs. ARGUMENT INTRODUCTION: THE JURISDICTIONAL STANDARD FOR DISCRETIONARY REVIEW OF A DISTRICT COURT OF APPEAL S DECISION HAS NOT BEEN DEMONSTRATED. This Court may only exercise jurisdiction to grant discretionary review of a decision of a district court of appeal which: (1) "expressly declares valid a state statute"; (2) "expressly construes a provision of the state or federal constitution"; 2
(3) "expressly affects a class of constitutional or state officers"; or (4) "expressly and directly conflicts with a decision of another district court of appeal or the supreme court on the same question of law." See Art. V, 3(b)(3), Fla. Const. (1968),; Fla. R. App. P. 9.030(a)(2)(A)(iiv); The Florida Star v. B.J.F., 530 So.2d 286, (Fla. 1988); Jenkins v. State, 385 So.2d 1356 (Fla. 1980). The Jurisdictional Brief fails to demonstrate any sound constitutional basis for discretionary jurisdiction to review the correct decision of the lower appellate tribunal. The Brief erroneously claims that review jurisdiction exists under the last two of the four tests identified above. I. THE FIRST DISTRICT COURT OF APPEAL S DECISION HAS NOT BEEN SHOWN TO EXPRESSLY AFFECT A CLASS OF CONSTITUTIONAL OR STATE OFFICERS. The First District Court of Appeal s decision below is this succinct sentence: Because the ALJ erred in finding that the Department had a rule placing the CCRCs in the executive branch, the order finding an invalid, unpromulgated rule is REVERSED. (A-3). The decision rejected a plainly erroneous order entered by a DOAH ALJ and illuminated Florida administrative law jurisprudence concerning the question of what constitutes a rule within the meaning of Section 120.52(15), Florida Statutes. Nothing in the decision, however, requires any state or constitutional officer 3
to do or not do anything. Because the decision did not pronounce any mandate or prohibition directed expressly at the powers or authority of any state or constitutional officer, it does not affect a class of officers. In Spradley v. State, 293 So.2d 697, 701, (Fla. 1974), this Court discussed when a decision affecting a class of constitutional or state officers would vest the Court with certiorari jurisdiction: A decision which affects a class of constitutional or state officers must be one which does more than simply modify or construe or add to the case law which comprises much of the substantive and procedural law of this state. Such cases naturally affect all classes of constitutional or state officers, in that the members of these classes are bound by the law the same as every citizen. To vest this Court with certiorari jurisdiction, a decision must directly, and in some way exclusively, affect the duties, powers, validity, formation, termination, or regulation of a particular class of constitutional or state officers. (emphasis original). The decision below certainly construes the rule-making requirements of Chapter 120, Florida Statutes, which apply equally to State agencies as defined in Section 120.52(1)(b)(1), Florida Statutes. But it does not directly or exclusively affect the duties, powers, validity, formation, termination, or regulation of any particular class of constitutional or state officers. Reversing DOAH, the First District held that the Department was not obligated to promulgate an investigative report or a legal opinion as rules in the absence of enforcement action by the agency. The District Court of Appeal specifically noted that whether the CCRC was an executive or 4
legislative agency was not an issue on appeal and stated we express no opinion on the matter. See A- 2, fn.2. The decision contains no judicial statement relative to the authority, duties, or responsibilities of Mr. Jennings as the occupant of the office of CCRC for the middle district. The decision, at A-2, does confirm that Mr. Jennings would be entitled to a clear point of entry in the event the Department were to undertake an action against him personally based upon Section 11.062, Florida Statutes, but this principle has been recognized in Florida administrative law since 1978. See Capaletti Bros., Inc. v. Dept. of Transportation, 362 So.2d 346 (Fla. 1 st DCA 1978). The Brief, at page 7, however, claims that the decision in question expressly affects not only Mr. Jennings but the entire class of state officers appointed pursuant to section 27.701(1), Fla. Stat. (2007) [i.e., the two CCRCs] by expanding the liability of section 11.062 to include those appointed under section 27.701(1). The Brief does not cite any statement found in the decision as support for this assertion. This claim is simply wrong; nothing in the decision expands the liability of Section 11.062, Florida Statutes, in any respect. The Brief, at page 7, makes a second, equally unfounded claim: that the decision reduces the authority of those [sic] class of officers to effectively represent CCRC-M and CCRC-S before the Legislature and 5
executive branch by prohibiting the retention of outside lobbyists. No statement in the decision is identified as support for the claim. The decision, however, announces no prohibition of the retention of outside lobbyists. The Brief, at page 7, makes a third, equally unfounded claim: that the decision results in a wholesale removal of Mr. Jennings, and other similarly situated class [sic] of officers, from the legislative branch to the executive branch. Again, no statement from the decision that supports the claim is identified. In fact, the First District expressly declined to reach the issue of branch placement for the regional counsel, see A- 2, fn.2. The Brief, also at page 7, wrongly claims that decision affects an entirely different class of state officers: the Commission on Capital Cases. Even if the decision sought to be reviewed could actually be said to affect the Commission on Capital Cases which the Department in no way concedes the Commission is not a class of officers; rather, as an advisory commission, it is a single state entity. A group of officers composing a single government entity such as a board or commission would not, as such board or commission, constitute a class. (emphasis original). Fla. State Bd. of Health v. Lewis, 149 So. 2d 41, 42 (Fla. 1963) (State Board of Health not class of officers); see also Larson v. Harrison, 142 So.2d 727 (Fla. 1962) (no class of State Treasurers); Crown Central Petroleum Corp. v. 6
Standard Oil Co. 142 So.2d 731 (Fla. 1962). (no class of Secretaries of State). There is no class of Commissions on Capital Cases. Finally, the Brief, again at page 7, finds still another class expressly affected by the decision: the Florida Legislature. According to the Brief, the decision reduces the authority of the Legislature to pass legislation that creates legislative agencies subject to their [sic] exclusive oversight. Contrary to this unfounded claim, nothing in the First District s opinion displaces or can displace the Legislature as the supreme legislative authority of the State of Florida. See Article III, 1, Fla. Const. (1968). Neither the Department nor the First District Court of Appeal has the power to usurp constitutional legislative authority. See Art. II, 3, Fla. Const. (1968); Bush v. Schiavo, 885 So.2d 321 (Fla. 2004); Chiles v. Children A, B. C. D, E. and F, 589 So.2d 260 (Fla. 1991); Askew v. Cross Key Waterways, 372 So.2d 913 (Fla. 1979); Lewis v. Bank of Pasco County, 346 So.2d 53 (Fla. 1976). The Department has never claimed to have an unconstitutional power to alter the fundamental nature of any statutorilycreated state entity by essentially removing it from the legislative branch and placing it in the executive branch if it so pleases. II. THE FIRST DISTRICT COURT OF APPEAL S DECISION HAS NOT BEEN SHOWN TO EXPRESSLY AND DIRECTLY CONFLICT WITH ANY DECISION OF ANOTHER DISTRICT COURT OR THIS COURT ON THE SAME QUESTION OF LAW. 7
The Jurisdictional Brief fails to identify any specific decision of this Court or of any district court of appeal that expressly and directly conflicts with the First District s decision below. Instead, the Brief, at p. 8-9, offers only a concatenation of 10 case citations and asserts that the decisions show the existence of conflict jurisdiction. See Dodi Publ. Co. v. Editorial Am., 385 So. 2d 1369 (Fla. 1980). See generally Jenkins v. State, 385 So.2d 1356 (Fla. 1980). The Brief does not discuss why there is express or direct conflict between any of the proffered string of appellate decisions and the decision of the First District below. No attempt has been made to identify any particular point of law as the subject of any conflict on the same point of law for purposes of establishing conflict jurisdiction in this Court. See Aravena v. Miami-Dade County, 928 So.2d 1163 (Fla. 2006) The Brief thus fails utterly to demonstrate the existence of lawful conflict jurisdiction that would support discretionary review by this Court of the decision below under Article V, 3(b)(3) of the Florida Constitution. For conflict jurisdiction to vest, there must be some statement or citation that hypothetically could create conflict if there were another opinion reaching a contrary result. The Florida Star v. B.J.F., 530 So.2d 8
286, 288 (Fla. 1988). The Brief does not identify any such statement or citation contained in the First District s opinion. When, as here, a petitioner complains about the result reached by the lower appellate court and not about the specific legal rationale expressed in the court s written decision, it is no different than if he were seeking review of a per curiam affirmance without written opinion. In Aravena v. Miami-Dade County, 928 So.2d 1163, 1166 (Fla. 2006), the Court stated this test of conflict jurisdiction: whether the holdings of two different district courts on the same point of law are irreconcilable. See also Crossley v. State, 596 So.2d 447, 449 (Fla. 1992). All three district court of appeal opinions cited in the Brief are distinguishable, and these decisions are not irreconcilable with the decision of the First District. None of these cases is factually similar to the case below. Because of this, none is irreconcilable with the decision under review. See Spradley, supra, at 701 (no conflict when different facts cause different results). Fla. Dept. of Revenue v. Cummings, 930 So.2d 604 (Fla. 2006), is the epitome of irreconcilable district court conflict: diametrically opposite DCA decisions on the same question of law. Id., at 606-607. No such express and direct conflict has been demonstrated here. 9
CONCLUSION Based on the foregoing, the Petition for Review must be DISMISSED. Respectfully submitted, Richard T. Donelan, Jr. Fla. Bar No. 198714 Chief Counsel Department of Financial Services 200 East Gaines Street Tallahassee, FL 32399-4247 (850)413-3010 fax (850)413-3029 CERTIFICATE OF SERVICE I herby certify that a true and correct copy of the foregoing Amended Jurisdictional Answer Brief of Respondent was furnished by U.S. Mail this 7 th day of March, 2008 to Peter J. Cannon, Esq., Assistant Capital Collateral Regional Counsel, 3801 Corporex Drive, Suite 210, Tampa, FL 33619. Richard T. Donelan, Jr. CERTIFICATE OF COMPLIANCE Pursuant to Fla. R. App. P. 9.210(a)(2), I certify that this computergenerated brief is prepared in Times New Roman 14-point font and complies with the font requirements of Rule 9.210, Florida Rules of Appellate Procedure. Richard T. Donelan, Jr. 10
IN THE SUPREME COURT OF FLORIDA CAPITAL COLLATERAL REGIONAL COUNSEL-MIDDLE REGION and JOHN W. JENNINGS, Petitioners. v. Case No. SC07-2447 LT Case No. 1D07-253 FLORIDA DEPARTMENT OF FINANCIAL SERVICES, Respondent. / APPENDIX TO JURISDICTIONAL ANSWER BRIEF OF STATE OF FLORIDA DEPARTMENT OF FINANCIAL SERVICES Florida Department of Financial Services v. A-1 Capital Collateral Regional Counsel-Middle Region, 969 So.2d 528 (Fla. 1 st DCA 2007)