IN THE SUPREME COURT OF FLORIDA CHARLIE CRIST, Attorney ) General of the State of ) Florida, ) ) Petitioner, ) Case No. SC vs. ) ) Fourth District REP. CORRINE BROWN, et al., ) Case Nos. 4D02-2353 & 4D02-2401 ) Respondents. ) / ON PETITION FOR DISCRETIONARY REVIEW OF A DECISION OF THE DISTRICT COURT OF APPEAL, FOURTH DISTRICT BRIEF OF PETITIONERS ON JURISDICTION CHARLIE CRIST ATTORNEY GENERAL CHRISTOPHER M. KISE Solicitor General CHARLES M. FAHLBUSCH Assistant Attorney General OFFICE OF THE SOLICITOR GENERAL The Capitol - PL-01 Tallahassee, FL 32399 (850) 414-3681 (850) 410-2672 (fax)
TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES...ii STATEMENT OF JURISDICTION... 1 STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 3 ARGUMENT THE FOURTH DISTRICT DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH DECISIONS OF THIS COURT ON THE SAME QUESTION OF LAW.... 4 CONCLUSION... 6 CERTIFICATE OF SERVICE... 7,8 CERTIFICATE OF COMPLIANCE... 9 Appendix i
TABLE OF AUTHORITIES CASES PAGE Mayo v. National Truck Brokers, Inc., 220 So. 2d 11 (Fla. 1969)... 3,5 Olive v. MAAS, 811 So. 2d 644, 647 (Fla. 2002)... 5 State ex rel. Shevin v. Kerwin, 279 So. 2d 836 (Fla. 1973) 6 Watson v. Claughton, 160 Fla. 217, 34 So. 2d 243 (Fla. 1948)... 3,6 FLORIDA STATUTES (2002) Section 86.091... 4,5 ii
STATEMENT OF JURISDICTION This Court has jurisdiction because the Opinion of the Fourth District Court of Appeal expressly and directly conflicts with decisions of this Court on the same question of law. STATEMENT OF THE CASE AND FACTS Three members of Congress and a Florida voter filed a declaratory judgment action in Broward County Circuit Court challenging the Congressional District reapportionment plan approved by the Florida Legislature, following the 2000 census. (App. 1). 1 The Attorney General was named as a party defendant in that action. The Circuit Court dismissed the action concluding it lacked jurisdiction over Congressional Reapportionment matters. (App. 1). The Circuit Court also denied the motion of the President of the Florida Senate to intervene in the action. (App. 1). The Fourth District reversed both rulings, holding the Circuit Court had subject matter jurisdiction to hear the Plaintiffs claims and the President of the Senate, although not indispensable, was a proper party to intervene. (App. 6). More importantly however, the Fourth District also held: The only truly indispensable party to an action attacking the constitutionality of Florida legislation... is the Attorney General. 9 1 The symbol App. will designate the Appendix to this Jurisdictional Brief. 1
9 See 86.091, Fla. Stat. (2002) (in any action for a declaratory judgment that a statute is unconstitutional the Attorney General shall be served and is entitled to be heard). In this instance we use the term indispensable party to mean a party without whom the action cannot proceed. In these reapportionment cases, all the other individual parties are merely proper. (App. 6). The Petitioners motion for rehearing or clarification regarding this issue was denied. 2
SUMMARY OF THE ARGUMENT The Attorney General is not even a necessary party to actions challenging the constitutionality of state statutes. See Mayo v. National Truck Brokers, Inc., 220 So. 2d 11, 13 (Fla. 1969); Watson v. Claughton, 160 Fla. 217, 222, 34 So. 2d 243, 246 (Fla. 1948). However, in direct contravention to decisions of this Court on the same question of law, the Fourth District held the Attorney General was not only a necessary party to such actions, but was indispensable. (App. 6). Requiring the Attorney General to participate in every action challenging the constitutionality of a Florida Statute would place an undue burden on the already limited resources of the office. Respectfully therefore, this Court should accept jurisdiction in this matter to address the Fourth District s erroneous decision. 3
ARGUMENT THE FOURTH DISTRICT DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH DECISIONS OF THIS COURT ON THE SAME QUESTION OF LAW. The Fourth District held the Attorney General is an indispensable party to an action challenging the constitutionality of Florida Legislation, pursuant to Section 86.091, Florida. Statutes (2002). Specifically, the Fourth District held: (App. 5-6) The only truly indispensable party to an action attacking the constitutionality of Florida legislation and this Joint Resolution is in the nature of legislation is the Attorney General. 9 9 See 86.091, Fla. Stat. (2002) (in any action for a declaratory judgment that a statute is unconstitutional the Attorney General shall be served and is entitled to be heard). In this instance we use the term indispensable party to mean a party without whom the action cannot proceed. In these reapportionment cases, all the other individual parties are merely proper. The statutory language does not support this interpretation. Moreover, this Court has held the Attorney General is not even a necessary party to such actions. Rather, under Section 86.091 the Attorney General s intervention to defend the constitutionality of a statute is purely discretionary. Therefore, the Fourth District s opinion in this case conflicts with decisions of this Court on the same question of law and 4
this Court should accept jurisdiction. First, the statutory language does not support the Fourth District s interpretation. Section 86.091 states in pertinent part: If the statute, charter, ordinance, or franchise is alleged to be unconstitutional, the Attorney General or the state attorney of the judicial circuit in which the action is pending shall be served with a copy of the complaint and be entitled to be heard. (emphasis added) The statute thus provides the Attorney General with notice and an opportunity to be heard, but leaves to the discretion of the Attorney General the decision to intervene and allocate state resources in a given action. follows: Second, this Court has interpreted section 86.091 as It is obvious from the provisions of Chapter 86 that neither the Attorney General nor the State Attorney of the circuit in which the action is pending are necessary parties in the strict sense of that expression. The statute merely provides that where the constitutionality of a statute, charter, order or franchise is raised in a declaratory judgment action that a copy of the complaint shall be served on the Attorney General or State Attorney and such officers shall be entitled to be heard. (emphasis added). Mayo v. National Truck Brokers, Inc., 220 So. 2d 11, 13 (Fla. 1969). See also Olive v. Maas, 811 So. 2d 644, 647 (Fla. 2002) (Attorney General exercised prerogative to appear and be heard 5
under 86.091). Additionally, under a prior, similar statutory provision, this Court stated that, It will be noted that this Section does not prescribe that the Attorney General shall be a necessary party when the constitutionality of an act is assailed. It only provides that he shall be heard,... Watson v. Claughton, 160 Fla. 217, 222, 34 So. 2d 243, 246 (Fla. 1948). Finally, requiring the Attorney General to appear and defend whenever the constitutionality of a statute is called into question would place an undue burden on already limited resources. As this Court noted in State ex rel. Shevin v. Kerwin, 279 So. 2d 836, 838 (Fla. 1973), [s]ince many constitutional challenges are raised in a trial court which can be simply disposed of as obviously meritless, it would be futile for the Attorney General to defend each statute against all constitutional challenges at the trial level. Unfortunately, the Fourth District s decision mandates the sort of futility this Court sought to avoid. CONCLUSION Based on the foregoing, Petitioner respectfully requests this Court accept jurisdiction of this matter to address the Fourth District s erroneous ruling. Respectfully submitted, CHARLIE CRIST ATTORNEY GENERAL 6
CHRISTOPHER M. KISE SOLICITOR GENERAL Florida Bar No. 0855545 CHARLES M. FAHLBUSCH Senior Assistant Attorney General Florida Bar No. 0191948 Office of the Attorney General 110 S.E. 6th Street, 10th Floor Fort Lauderdale, FL 33301 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing JURISDICTIONAL BRIEF OF PETITIONERS and APPENDIX was furnished by United States mail to the following, on this day of January, 2003. Ephraim R. Hess Hess & O Loughlin, P.A. Co-counsel for Appellants Post Office Box 460505 Ft. Lauderdale, F33346-0505 Telephone: (954) 942-5577 Facsimile: (954) 252-4536 Gerard T. York, Esq. Assistant General Counsel for Defendant Jim Smith Florida Department of State PL-02, The Capitol Tallahassee, FL 32399-0250 Telephone: (850) 245-6517 Facsimile: (850) 245-6125 Joseph P. Klock, Jr., Esq. John W. Little, III Esq. 7
Arthur R. Lewis, Jr., Esq. Gabriel Nitto, Esq. Counsel for Defendant Jim Smith Steel Hector & Davis LLP 200 South Biscayne Blvd., Suite 4000 Miami, Florida 33131-2398 Telephone: (305) 577-2877 Facsimile: (305) 577-7001 William R. Scherer, Esq. Conrad & Scherer, LLP Counsel for John McKay Post Office Box 14723 Fort Lauderdale, Florida 33302 Telephone: (954) 462-5500 Facsimile: (954) 463-9244 8
James A. Scott, Esq. Edward J. Pozzuoli, Esq. Alexis M. Yarborough, Esq. Counsel for John McKay Trip Scott, P.A. 110 S.E. 6 th Street, 5 th Floor Fort Lauderdale, Florida 33301 Telephone: (954) 525-7500 Facsimile: (954) 761-8475 Thomas E. Scott, Esq. Counsel for John McKay Cole, Scott, & Kissane, P.A. 1390 Brickell Avenue, 3 rd Floor Miami, Florida 33131 Telephone: (305) 350-5300 Facsimile: (305) 373-2294 J. Gerald Hebert, Esq. Counsel for Plaintiffs 5019 Waple Lane Alexandria, VA 22304 Telephone: (703) 567-5873 Facsimile: (703) 567-5876 Paul M. Smith, Esq. Sam Hirsch, Esq. Katherine Fallow, Esq. Counsel for Plaintiffs Jenner & Block 601 13 th Street N.W. Washington, DC 20005 Telephone: (202) 639-6000 Facsimile: (202) 639-6066 Christopher S. Carver, Esq. Counsel for Speaker Tom Feeney Ackerman Senterfitt Attorneys at Law One Southeast Third Avenue 28 th Floor Miami, Florida 33131-1714 Telephone (305) 374-5600 Facsimile (305) 374-5095 9
CHRISTOPHER M. KISE Solicitor General CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this computer-generated brief is prepared in Courier New 12-point font, and is in compliance with the font requirements of Rule 9.210, Florida Rules of Appellate Procedure. CHRISTOPHER M. KISE Solicitor General 10
APPENDIX
INDEX TO APPENDIX Page 1. Decision of the Fourth District Court of Appeal in Brown v. Butterworth, Case Nos. 4D02-2353 & 4D02-2401 1