IN THE SUPREME COURT OF THE STATE OF FLORIDA Case Number: SC09-202 CITY OF BOCA RATON and CITY OF DELRAY BEACH, et al., Petitioners, vs. 4 th DCA CASE No. 4D07-3287 PALM BEACH COUNTY, Respondent. RESPONDENT S JURISDICTIONAL BRIEF Denise M. Nieman, County Attorney Leonard Berger, Assistant County Attorney 301 North Olive Avenue, Suite 601 West Palm Beach, Florida 33401 Attorneys for Respondent PALM BEACH COUNTY
TABLE OF CONTENTS Page TABLE OF AUTHORITIES... ii EXPLANATORY NOTES... iii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 3 ARGUMENT... 3 I. THE FOURTH DISTRICT S CITATION OF TWO CONSTITUTIONAL PROVISIONS DOES NOT JUSTIFY DISCRETIONARY JURISDICTION.... 3 II. THERE IS NO CONFLICT.... 5 CONCLUSION... 10 CERTIFICATE OF COMPLIANCE... 11 CERTIFICATE OF SERVICE... 11 i
TABLE OF AUTHORITIES Florida State Cases Cited Alsdorf v. Broward County, 373 So. 2d 695 (Fla. 4 th DCA 1979)... 8 Carmazi v. Board of County Commissioners, 104 So.2d 727 (1958)... 5 City of Ormond Beach v. County of Volusia, 383 So. 2d 671 (Fla. 5 th DCA 1980)... 2 City of St. Petersburg v. Briley, Wild & Associates, 239 So. 2d 817 (Fla. 1970)... 4 County of Volusia v. State, 417 So. 2d 968 (Fla. 1982)... 9 Manatee County v. Town of Longboat Key, 365 So. 2d 143 (Fla. 1978)... 6 Ogle v. Pepin, 273 So.2d 391 (Fla. 1973)... 5 Reaves v. State, 485 So.2d 829 (Fla. 2001)... 1 Rojas v. State, 288 So.2d 234 (Fla. 1973)... 5 Sarasota County v. Town of Longboat Key, 355 So. 2d 1197 (Fla. 1978)... 4, 8, 9 State v. Halifax Hospital District, 159 So. 2d 231 (Fla. 1963)... 9 Town of Palm Beach v. Palm Beach County, 460 So. 2d 879 (Fla. 1984)... 2, 4, 6, 7, 8 ii
Florida Constitution, Florida Statutes and Other Authorities Article V, 3(b)(3), Florida Constitution... 5 Article VIII, 1(h), Florida Constitution... 1, 3 Article VIII, 4, Florida Constitution... 1, 2, 3, 4 Section 125.01(6)(a), Florida Statutes... 6 Rule 9.030(a)(2)(A)(ii), Fla. R. App. P.... 5 Rule 9.030(a)(2)(A)(iv), Fla. R. App. P.... 5 EXPLANATORY NOTES Respondent Palm Beach County will be referred to as County. Petitioners City of Boca Raton and City of Delray Beach will be referred to collectively as Cities. The Fourth District s opinion, which is included as Appendix A to Petitioners Jurisdictional Brief, will be referred to as (App. at ). iii
STATEMENT OF THE CASE AND FACTS Throughout the Petitioners Brief on Jurisdiction, the Cities improperly rely on matters outside the four corners of the opinion. See Reaves v. State, 485 So.2d 829 n.3 (Fla. 2001). The relevant facts, based on the opinion below, follow. The Cities Statement of Facts mischaracterizes the case below by focusing on 911 dispatch service only, a single aspect of the County Dispatch System (CDS), which provides numerous emergency communication functions. As the Fourth District explained below, this concerned the use of tax revenues collected countywide to fund the CDS. The County identified twelve benefits that the CDS provides to the Cities. Palm Beach County v. City of Boca Raton and City of Delray Beach, et al., 995 So.2d 1017 (4 th DCA), reh g denied, 12/30/2008 (App. at 2 and 4-6). To encourage participation, the County initiated an incentive program, providing necessary communication equipment to participating cities (App. at 2). The Cities brought this case arguing that the CDS provides no real and substantial benefit, in violation of Article VIII, section 1(h), Florida Constitution, and also that the County s incentive program amounted to an indirect method of compelling a transfer of government powers without the benefit of a dual referendum as required by Article VIII, section 4, Florida Constitution. As to the first issue, the Fourth District found that the generally undisputed facts (App. at 3) indicated the Cities received a real and substantial benefit from 1
the services dispatched through the CDS. The opinion noted that the Cities concede many of the services, such as dispatch for Trauma Hawk, Radio Talk Group Hospital Notification System, Hazardous Materials Response Teams, and emergency aid to city residents traveling outside city boundaries, provide benefits to its citizens (App. at 3-5). Relying in large part on this Court s opinion in Town of Palm Beach v. Palm Beach County, 460 So.2d 879 (Fla. 1984), the Fourth District found that the trial court erred in finding a lack of real and substantial benefit based on relative number of assists and the Cities preference for a different system (App. at 6: The fact that Cities assert that they do not want or need CDSderived benefits is not support for a finding of no real and substantial benefit where the services are nonetheless available to city residents. citing City of Ormond Beach v. County of Volusia, 383 So.2d 671 (Fla. 5 th DCA 1980)). As to the second issue, the Fourth District explained that the prohibition in Article VIII, section 4 applies where one government completely divests another government of the authority it previously held (App. at 7-8). In reversing the trial court, the Fourth District properly held that the County s incentive program does not coerce the Cities to completely divest themselves of any power of dispatch functions (App. at 8). The Cities claim in their Statement of Facts that the Fourth District held, although the goal of the County is to ultimately have one countywide dispatch service, the Cities continued to operate their own systems 2
(for now). Jurisdictional Brief at 4. This characterization of the opinion is remarkably misleading. The opinion actually states: Although it is possible that County s goal is a transfer of power, that result may not occur. (App. at 8). SUMMARY OF THE ARGUMENT The opinion below cites two constitutional provisions, Article VIII, section 1(h), and Article VIII, section 4, but not in a manner that expounds or clarifies either. As to each provision, the court merely applies established precedent. As to the former, the opinion does not construe a constitutional provision at all, but instead applies holdings established by well-settled case law. As to the latter, the opinion simply rejects the notion that providing equipment to the Cities as part of a voluntary program is an indirect transfer requiring dual referenda. As to conflict jurisdiction, the Cities do not cite cases having an express or direct conflict with applicable state law, but improperly reargue the merits of the opinion below. ARGUMENT I. THE FOURTH DISTRICT S CITATION OF TWO CONSTITUTIONAL PROVISIONS DOES NOT JUSTIFY DISCRETIONARY JURISDICTION The opinion below does not construe Article VIII, section 1(h), but merely recites its language. The Constitution provides in relevant part: municipalities shall not be subject to taxation for services rendered by the County exclusively for 3
the benefit of the property or residents in unincorporated areas. The Fourth District does not discuss the meaning of this language, but instead bases its analysis on the so-called real and substantial benefit test. This test is the gloss placed on the Constitution by City of St. Petersburg v. Briley, Wild & Associates, 239 So. 2d 817 (Fla. 1970), and its progeny. The Fourth District merely applies the test consistent with case law and does not expand upon or clarify this section of the Constitution. That this Court has previously exercised discretionary jurisdiction in construing this provision in the past is irrelevant here. The Town of Palm Beach and like opinions settled the law on this subject decades ago. The Fourth District s opinion does not interpret Article VIII, section 4, but only refuses to accept the Cities novel theory that an alleged motive of the County in providing equipment to municipalities that participate in the CDS amounts to an indirect attempt to transfer powers without dual referenda. This concept is entirely alien to Florida law. The Cities reliance on Sarasota County v. Town of Longboat Key, 355 So. 2d 1197 (Fla. 1978) is misplaced. That case concerned proposed charter amendments to completely transfer all city responsibilities for certain functions to the county. None of the parties in that case disputed that a true transfer of powers was involved. In our case, it is clear that no such transfer is at issue (App. at 8). As with the Town of Palm Beach, where Boca Raton continues to operate its own police and detective divisions decades after the decision, the 4
Cities in our case continue to provide their own fire rescue dispatch services. The County has done nothing, directly or indirectly, to divest the Cities of their authority to do so. The Fourth District s opinion does not directly construe the two constitutional provisions in the sense contemplated by Rule 9.030(a)(2)(A)(ii), Fla. R. App. Pro. Mere application of settled law to these provisions, which the Fourth District did in this case, is insufficient to invoke this Court s jurisdiction. See Rojas v. State, 288 So.2d 234 (Fla. 1973) (and cases cited therein); Carmazi v. Board of County Commissioners, 104 So.2d 727 (Fla. 1958); see also Ogle v. Pepin, 273 So.2d 391 (Fla. 1973) (An opinion does not construe a constitutional provision unless it explains, defines, or otherwise eliminates existing doubts from it). II. THERE IS NO CONFLICT The Florida Constitution permits the Supreme Court to exercise its discretionary conflict jurisdiction only when a lower court's decision expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law. Fla. Const. art. V, 3(b)(3); accord Fla. R. App. P. 9.030(a)(2)(A)(iv). The Cities again rely on matters outside the opinion in asserting that their only challenge in this case involved 911 telephone calls. This is not only an 5
improper attempt to argue the merits of the case, but as is clear from the opinion below, the Cities obviously took issue with all the services provided by the CDS. As stated by the Fourth District: The instant facts are generally undisputed, the issue remaining on the legal conclusion to be drawn from the fact that Cities do not widely use some services provided by CDS, do not want to use others, are dissatisfied with another and the fact that some benefits are potential and not present. (App. at 3). In any event, section 125.01(6)(a), Florida Statutes, does not enable a city to cherry-pick discrete aspects of a program to dismantle a county s legislative prerogative. And this practice is not approved by courts interpreting this statute. See Manatee County v. Town of Longboat Key, 365 So.2d 143, 148 (Fla. 1978) (... courts should not fashion formulas and make choices among alternatives for counties.... Courts must be cautious about drawing lines in areas best suited for legislative action ). The Fourth District correctly viewed the benefits of the CDS in the aggregate. In Town of Palm Beach v. Palm Beach County, 460 So.2d 879, 881 (Fla. 1984), this Court also viewed the benefits provided by the county s road patrol and detective division in the aggregate to determine whether a real and substantial benefit existed. There is no conflict between this case and the Fourth District opinion. The Cities note at page 9 of their Brief that no real and substantial benefit existed in Town of Palm Beach as it related to the provision of 6
neighborhood parks, but cannot seriously consider the services provided by the sheriff and the neighborhood parks to be the same service. Clearly, these were discrete programs, separately litigated in that case. The Cities are also incorrect in asserting at page 9 of their Brief that the Court in Town of Palm Beach found no real and substantial benefit where these neighborhood parks were occasionally used by city residents. There is no mention of occasional use in the Court s opinion. Rather, the Court noted that neighborhood parks by design are located within walking distance of the intended users and that it would be highly unlikely for a city resident to leave the town to use a park surely not within walking distance. 460 So.2d at 884. In other words, the Court found that city residents received no benefit whatsoever. To suggest that this Court found no real and substantial benefit from a park where city residents made occasional use of it incorrectly miscasts the legal principle at issue and is unfortunately misleading. The Cities argue at page 8 of their Brief that there is no benefit to city residents travelling outside of their cities when they call 911, and assert further that finding a benefit in this instance eviscerates the real and substantial benefit test. This argument ignores the principle that the benefits received from the CDS must be considered collectively. Town of Palm Beach, 460 So.2d at 881. Arguing that this opinion eviscerates the real and substantial benefit test also ignores the 7
principle that cases of this sort must be decided on their own facts. Alsdorf v. Broward County, 373 So.2d 695 (4 th DCA 1979). Finally, this argument ignores the plain facts of this case. The fire chiefs of Boca Raton and Delray Beach both conceded that this service provided a benefit to the Cities residents. The opinion further points out that over two years, the County used the CDS to dispatch emergency aid to 759 city residents (App. at 5). The Cities may disagree with the Fourth District s opinion in this case, but fail to demonstrate any conflict with Town of Palm Beach. The Cities also argue incorrectly that the opinion conflicts with those that hold a government cannot do indirectly that which it cannot do directly. This argument is founded on the false premise that the County s voluntary incentive program could result in a city completely divesting itself of its dispatch authority. As the Fourth District explained, there is nothing in this case to suggest that this program would coerce the Cities to divest themselves of any power over their dispatch functions and give County absolute and exclusive power to exercise such function. (App. at 8). Without complete divestment of authority, there can be no transfer of power, direct or indirect. Sarasota County v. Town of Longboat Key, 355 So. 2d 1197 (Fla. 1978), does not apply because that case concerned charter amendments that would indisputably transfer all city responsibilities for certain functions to the county. The other cases cited by Cities in support of this 8
argument, State v. Halifax Hospital District, 159 So. 2d 231 (Fla. 1963), and County of Volusia v. State, 417 So. 2d 968 (Fla. 1982), also do not apply. Both concern the constitutional requirement that voters approve any use of ad valorem taxes to repay government issued bonds. In both cases, the local government issued bonds without voter approval, but nevertheless made commitments as part of the bond issuance that could lead to the use of ad valorem taxes. See Halifax, 159 So. 2d at 235; Volusia, 417 So. 2d at 972. The Court determined that issuance of these bonds without voter approval violated the Constitution because ad valorem taxes could be used as a consequence. These cases do not apply because they involve governments using an indirect means to accomplish an unconstitutional end. As already noted, there is no transfer of powers involved in this case; therefore, there is no constitutional requirement for dual referenda. Arguing that the Fourth District s opinion conflicts with Sarasota County because the transfer had not yet occurred also ignores the plain fact that there is no transfer at issue here. In sum, the Cities assert a real and direct conflict, but challenge only the use of 911 service, which ignores the opinion below, ignores the principle that benefits are to be viewed in the composite, and improperly seeks to argue the merits of the case and matters that are beyond the scope of the Fourth District s opinion. The Cities insist a conflict exists with transfer of power cases where there is no transfer 9
of power at issue here. Along the way, Cities have failed to demonstrate in any way that an express or direct conflict exists. Dissatisfaction or disagreement with the Fourth District s opinion does not amount to an express or direct conflict necessary to assert jurisdiction. CONCLUSION For the foregoing reasons, this Court should deny jurisdiction. Respectfully submitted, PALM BEACH COUNTY ATTORNEY S OFFICE 301 North Olive Avenue, Suite 601 West Palm Beach, Florida 33401 Telephone: (561) 355-2542 Facsimile: (561) 355-4398 By: Leonard Berger Senior Assistant County Attorney Florida Bar No. 0896055 Email: lberger@co.palm-beach.fl.us 10
CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that Respondent s Jurisdictional Brief complies with the font requirements of Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure. PALM BEACH COUNTY ATTORNEY S OFFICE 301 North Olive Avenue, Suite 601 West Palm Beach, Florida 33401 Telephone: (561) 355-2542 Facsimile: (561) 355-4398 By: Leonard Berger Senior Assistant County Attorney Florida Bar No. 0896055 Email: lberger@co.palm-beach.fl.us CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of Respondent s Jurisdictional Brief has been furnished by U.S. Mail to all parties on the Service List attached hereto on February 24, 2009. Leonard Berger Florida Bar No. 0896055 11
SERVICE LIST Fourth District Court of Appeal Case No. 4D07-3287 L. T. Case No. 2005CA009338XXXXMB AE (City of Boca Raton and City of Delray Beach v. Palm Beach County) Jamie Alan Cole, Esq. Matthew H. Mandel, Esq. Laura K. Wendell, Esq. Weiss Serota Helfman Pastoriza Cole & Boniske, P.A. 200 East Broward Blvd, STE 1900 Fort Lauderdale, FL 33301-1949 Counsel for Plaintiffs, City of Boca Raton and City of Delray Beach; Co-Counsel for Town of Ocean Ridge, Town of Palm Beach Shores, and Town of Mangonia Park Telephone: 954-763-4242 Facsimile: 954-764-7770 Diana Grub Frieser, Esq. City Attorney City of Boca Raton 201 West Palmetto Park Road Boca Raton, FL 33432-3730 Co-Counsel for Plaintiff, City of Boca Raton Telephone: 561-393-7716 Facsimile: 561-393-7780 Susan Ruby, Esq., City Attorney City of Delray Beach 200 NW 1 st Avenue Delray Beach, FL 33444-2768 Co-Counsel for Plaintiff, City of Delray Beach Telephone: 561-243-7090 Facsimile: 561-278-4755 John C. Randolph, Esq. Jones Foster Johnston & Stubbs, P.A. 505 South Flagler Drive, STE 1100 P. O. Box 3475 West Palm Beach, FL 33402-3475 Counsel for Plaintiff-Intervenor, Town of Gulf Stream Telephone: 561-659-3000 Facsimile: 561-650-0465 James A. Cherof, Esq. Jamila V. Alexander, Esq. Goren Cherof Doody & Ezrol, P.A. 3099 East Commercial Blvd, STE 200 Fort Lauderdale, FL 33308-4311 Counsel for Plaintiff-Intervenor, City of Boynton Beach Telephone: 954-771-4500 Facsimile: 954-771-4923 Kenneth G. Spillias, Esq. Lewis Longman & Walker, P.A. 1700 Palm Beach Lakes Blvd. #1000 West Palm Beach, FL 33401-2006 Counsel for Plaintiff-Intervenor, Town of Ocean Ridge Telephone: 561-640-0820 Facsimile: 561-640-8202 12
George W. Baldwin, Esq. Law Offices of Brant and Baldwin 330 U.S. Highway 1 Lake Park, FL 33403-3554 Counsel for Plaintiff-Intervenor, Village of North Palm Beach Telephone: 561-845-1700 Facsimile: 561-842-1548 Karen E. Roselli, Esq. Thomas J. Baird, Esq. Baird & Roselli 11891 N U.S. Highway 1 STE 100 North Palm Beach, FL 33408-2864 Counsel for Plaintiff-Intervenor, Village of Palm Springs Telephone: 561-625-4400 Facsimile: 561-625-0610 Keith W. Davis, Esq. R. Max Lohman, Esq. Bradley W. Biggs, Esq. Corbett & White, P.A. 1111 Hypoluxo Road STE 207 Lantana FL 33462-4271 Counsel for Plaintiff-Intervenors, City of Atlantis, Town of Mangonia Park, and Town of Palm Beach Shores Telephone: 561-586-7116 Facsimile: 561-586-9611 Larry Corman, Esq. Hodgson Russ LLP 1801 North Military Trail STE 200 Boca Raton FL 33431-1810 Counsel for Plaintiff-Intervenor, Town of Highland Beach Telephone: 561-394-0500 Facsimile: 561-394-3862 Donna M. Krusbe, Esq. Billing Cochran Heath Lyles Mauro, Anderson & Ramsey, P.A. 400 S Australian Avenue STE 500 West Palm Beach, FL 33401-5042 Co-Counsel for Defendant, Palm Beach County Telephone: 561-659-5970 Facsimile: 561-659-6173 Clark J. Cochran, Esquire Susan F. Delegal, Esquire Billing, Cochran, Heath, Lyles, Mauro, Anderson & Ramsey, P.A. 888 SE 3 rd Avenue STE 301 Fort Lauderdale FL 33316-1159 Co-Counsel for Defendant, Palm Beach County Telephone: 954-764-7150 Facsimile: 954-764-7279 13
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