IN THE SUPREME COURT STATE OF FLORIDA ROBERT J. CROUCH, Petitioner, v. CASE NO.: SC 05 2140 THE PUBLIC SERVICE COMMISSION, STATE OF FLORIDA, Respondent. / RESPONDENT S BRIEF ON JURISDICTION Harold R. Mardenborough, Jr. Fla. Bar No. 947172 Jason Taylor Fla. Bar No. 497525 Carr Allison 305 South Gadsden Street Tallahassee, Florida 32301 Commission Attorneys for Respondent The Public Service State of Florida
TABLE OF CONTENTS TABLE OF CITATIONS... ii STATEMENT OF THE CASE AND FACTS... 1 JURISDICTIONAL STATEMENT... 2 SUMMARY OF THE ARGUMENT... 4 ARGUMENT... 5 CONCLUSION... 10 CERTIFICATE OF SERVICE... 10 i
TABLE OF CITATIONS Cases A.R. Douglass, Inc. v. McRainey, 137 So. 157 (1931)... 6 American Bankers Life Assurance Co. v. Williams, 212 So.2d 777 (Fla. 1st DCA 1968)... 7 Crouch v. Public Service Commission, 913 So.2d 111 (Fla. 1 st DCA 2005)... 1 Donato v. American Tel. & Tel. Co., 767 So.2d 1146 (Fla. 2000)... 6-7 Florida Power and Light Co. v. Bell, 113 So.2d 697 (Fla. 1959)... 3 Golf Channel v. Jenkins, 752 So.2d 561 (Fla. 2000)... 8-9 Holly v. Auld, 450 So.2d 217 (Fla.1984)... 6, 8 Irven v. Department of Health and Rehabilitative Services, 790 So.2d 403 (Fla. 2001)... 9-10 Kincaid v. World Ins. Co., 157 So.2d 517 (Fla. 1963)... 3 Martin County v. Edenfield, 609 So.2d 27 (Fla. 1992)... 7-8 Orange County v. City of Orlando, 327 So.2d 7 (Fla. 1976)... 3 South Florida Hospital Corp. v. McCrea, 118 So.2d 25, 27 (Fla. 1960)... 3 Whipple v. State, 431 So.2d 1011 (Fla. 2d DCA 1983)... 3 ii
Statutes, Rules and Constitutional Provisions Art. V, Sec. 3(b)(3), Fla. Const.... 2 112.3187(7), Fla. Stat. (2001)... passim 112.3189(1), Fla. Stat. (2001)... 5 448.102(2), Fla. Stat. (1997)... 9 448.102(3), Fla. Stat. (1997)... 9 448.103, Fla. Stat. (1997)... 9 Fla. R. App. P. 9.030(a)(2)(A)(iv)... 9 STATEMENT OF THE CASE AND FACTS iii
Crouch was fired from his job with the Public Service Commission ( PSC ). He filed suit, alleging he was fired in violation of the Public Whistle-Blower s Act. Crouch claimed he was fired because he had complained about alleged misfeasance. At trial, Crouch produced evidence that he complained directly to his supervisors. Crouch never made any of these complaints in writing. He admitted such in his Initial Brief before the First District Court of Appeal. See Initial Brief, p. 16. Crouch also produced evidence that, when read in a light most favorable to him, could have established that his complaints eventually reached the person designated as agency inspector general. 1 However, the evidence at trial established Crouch never made any such complaints directly to the agency inspector general until after he had already been fired. Crouch v. Public Service Commission, 913 So.2d 111, 112 (Fla. 1 st DCA 2005). 1 The statute identifies several entities similarly. These are the actual office of the Inspector General, the person identified as agency inspector general, or the Florida Commission on Human Relations. See 112.0837(7), Fla. Stat. (2001). In this case, the only entity possibly meeting this section is the agency inspector general, so all references in this Brief will be to that category of persons. 2
The trial court granted the PSC s Motion for Directed Verdict, finding Crouch was not entitled to protection under the Public Whistle-Blower s Act because he did fit within any of the categories of protected persons defined in Section 112.3187(7), Florida Statutes. Crouch appealed. The district court affirmed the ruling that Crouch s verbal complaints to his supervisory officials did not satisfy the requirements of the Whistle-Blower s Act. Crouch, 913 So.2d at 111. It found Crouch complained only to this supervisory officials, and did not do so in writing. Under these circumstances, the plain language of the statute does not provide Crouch protection. Id. Crouch claims the opinion is a holding that the Act should be narrowly construed, and seeks review because the decision below expressly and directly conflicts with other holdings by this Court which held the Act should be liberally construed. Crouch is wrong. The decision below does not hold the Act should be narrowly construed and it does not expressly and directly conflict with any decision by this Court. JURISDICTIONAL STATEMENT 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 3
another district court of appeal or of the supreme court on the same question of law. Art. V, Sec. 3(b)(3), Fla. Const.; Fla. R. App. P. 9.030(a)(2)(A)(iv). Florida intermediate appellate courts are intended to, in most cases, be courts of last resort. Further review by this Court is limited to only certain cases. The stated purpose of conflict jurisdiction is to ensure harmony among the various appellate courts. See Orange County v. City of Orlando, 327 So.2d 7 (Fla. 1976); Florida Power and Light Co. v. Bell, 113 So.2d 697 (Fla. 1959). Thus, when district court opinions conflict, this Court is called upon to decide which is correct. When the opinion of a district court opinion conflicts with an opinion by this Court, this Court is called upon to resolve the conflict. Conflict jurisdiction does not, however, authorize this Court to act as a errorcorrecting court. Whipple v. State, 431 So.2d 1011, 1014 (Fla. 2d DCA 1983); see also Kincaid v. World Ins. Co., 157 So.2d 517 (Fla. 1963)(test whether there is conflict jurisdiction does not include an evaluation as to whether this Court agrees or disagrees with the opinion on appeal). The test here is simple: For this [C]ourt to interfere with the judgment of a district court of appeal... it must appear that the court of appeal has, in the decision challenged, made a pronouncement of a point of law which the 4
bench and bar and future litigants may fairly regard as an authoritative precedent but which is in direct conflict with the pronouncement on the same point of law in a decision or decisions of the Supreme Court or another District Court of Appeal. South Florida Hospital Corp. v. McCrea, 118 So.2d 25, 27 (Fla. 1960)(emphasis added). Thus, the question here is whether there is any pronouncement of law in Crouch that lawyers and litigants would fairly regard as authoritative precedent but which is in direct conflict with any of this Court s other holdings. SUMMARY OF THE ARGUMENT Petitioner is incorrect. The district court opinion decision does not conflict with any of the cited cases. Each of the cases cited by Petitioner properly stands for the general premise that the Public Whistle-Blower Act is to be broadly construed, but none of those cases hold, or even imply, that trial courts are to ignore general principles of statutory construction when analyzing the availability of statutory remedies. The district court did not narrowly construe the Public Whistle-Blower s statute by refusing to recognize Crouch as being one of the persons protected under Section 112.3187(7); it simply applied the statute as it is written. This Court has never held that trial courts should 5
ignore the plain language of the Public Whistle-Blower s Act, so the opinion cannot conflict with any prior opinion of this Court. A review of each of the cases cited by Crouch shows they had nothing to do with the particular issue before the district court - whether an employee had to complain in writing to supervisors or directly to an agency inspector general. Crouch s claim that these cases stand for some general proposition that all Public Whistle-Blower claims must be viewed in a light toward granting relief, even if such relief contradicts the plain language of the statute, is unsupported by those holdings and cannot form the basis for conflict jurisdiction. ARGUMENT The Public Whistle-Blower s Act defines which people are protected under what conditions. 112.3187(7), Fla. Stat. (2001). Whistle-blower protection is afforded to employees and persons who fit within several categories. Crouch obviously did not fit within the first category (employees who submit written and signed complaints); the second category (those who are requested to participate in an investigation or 6
inquiry); the third category (those who refuse to participate in any adverse action prohibited by the section); or the fourth category (those who submit a complaint to the whistleblower s hotline). The issue below centered upon the fifth category, which protects employees who file any written complaint to their supervisory officials or employees who submit a complaint to the Chief Inspector General in the Executive Office of the Governor, to the employee designated as Agency Inspector General 2 under s. 112.3189(1), or to the Florida Commission on Human Relations. 3 It was undisputed Crouch never filed any written complaint to his supervisors. See Petitioner s Brief on Jurisdiction, pp. 3-4 (noting Petitioner s claim was that his verbal complaints were sufficient). The sole issue before the district court was whether the language in Section 112.3187(7) required Crouch to make complaints directly to the designated agency inspector general in order to qualify as a protected person under the Public Whistle-Blower s Act. This was simply a matter of statutory 2 See n. 1, supra. 3 The PSC argued at the trial court and at the district court that the written complaint requirement applied both to complaints made by an employer to their supervisors and to employees who complain to the inspector general. Both the trial court and the appellate court rejected this argument. 7
construction as to a matter not previously even addressed by this Court or any district court. Thus, the opinion cannot expressly and directly conflict on that issue. There is no evidence the district court misapprehended the nature of the Whistle-Blower s Act. Indeed, the PSC recognized it its Answer Brief that the Act was remedial in nature and that it should be construed liberally in granting access to the remedy. Crouch claims the district court narrowly construed the Whistle-Blower s Act, but the PSC never even asked the court to do so. The PSC only asked the court to apply the statute as it is written. This Court must consider the context in which any statutory construction takes place. Before a court even addresses the question of narrow versus broad construction, it must look to the plain language of the statute. [T]he primary source for determining legislative intent is the language chosen by the Legislature to express its intent. As [] stated in Holly v. Auld, 450 So.2d 217 (Fla.1984), [w]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its 8
plain and obvious meaning. Id. at 219 (quoting A.R. Douglass, Inc. v. McRainey, [] 137 So. 157, 159 (1931)). More importantly, we are precluded from construing an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power. Id. (quoting American Bankers Life Assurance Co. v. Williams, 212 So.2d 777, 778 (Fla. 1st DCA 1968)). Donato v. American Tel. & Tel. Co., 767 So.2d 1146, 1050-51 (Fla. 2000). If the plain language is clear, the issue is concluded. Crouch s attempt to broadly interpret the Act to provide protection the plain language does not provide is in express and direct conflict with Donato. This alone warrants rejection of Crouch s request for review. The opinion below does not conflict with this Court s holdings on statutory construction. Moreover, a close review of each of the opinions cited by Crouch shows that the opinion does not conflict with any of them. There is no conflict with Martin County v. Edenfield, 609 So.2d 27 (Fla. 1992). In that case, the issue was whether the statute contained an implied exception for whistle-blowers 9
who are in pari delicto with the wrongdoers whose malfeasance they have revealed. Id. at 28. This Court reviewed the statute and found that the plain language of the statute allowed the employer to raise the defense that the protected person was subjected to adverse action for some reason other than the act of whistle-blowing itself, but that this was a matter of an evidentiary concern, not a legal exception. Id. at 29. This issue has nothing to do with the construction of Section 112.3187(7) as it relates to whether the person seeking protection must make a complaint directly to the Agency Inspector General. While the facts of Edenfield are completely unrelated to the analysis of this case, the rationale of this Court in Edenfield supports, rather than contradicts, the holding below. In Edenfield, this Court recognized Florida law is well settled that ambiguity is a pre-requisite to judicial construction, and in the absence of ambiguity the plain meaning of the statute prevails. Id. (citing Holly v. Auld, 450 So.2d 217 (Fla. 1984)). It is only once ambiguity is found that liberal or strict construction issues come into play. Id. Thus, the holding below does not conflict with the Edenfield decision because the opinion did not apply a conflicting mode of statutory construction. 10
The holding below does not conflict with Golf Channel v. Jenkins, 752 So.2d 561 (Fla. 2000). There, this Court interpreted the private-sector Whistle-Blower Act to determine whether employees whose whistle-blower claims are based on retaliatory personnel action prohibited by Subsections 448.102(2) and (3) are required by Section 448.103 to give their employers written notice as a pre-requisite to maintain a cause of action for retaliatory personnel action. Id. at 563. This Court continued it historical treatment of these types of statutes as being remedial in nature which should be liberally construed in favor of granting access to the remedy provided by the Legislature. Id. at 565-66. However, again this was not a general holding authorizing courts to ignore the plain language of such statutes. Before applying this liberal construction, this Court found expressly found subsection 448.103(1)(c) creates an ambiguity requiring statutory construction... Id. at 564. In other words, the holding in Jenkins was yet another case in which this Court recognized the general principles of statutory construction: first, it determined whether the statute could be interpreted based on its plain language, or whether the statute is ambiguous; second, if the statute cannot be interpreted based on its plain language, or is 11
ambiguous, the court could apply other methods of statutory instruction, including a determination of whether the statutes should be strictly or liberally construed. As Jenkins did not hold all whistle-blower statutes must be interpreted broadly, even when such construction would violate the plain language of the statute, the opinion below cannot expressly and directly conflict with the decision and cannot form the basis for jurisdiction here. The holding below does not conflict with Irven v. Department of Health and Rehabilitative Services, 790 So.2d 403 (Fla. 2001). There, this Court simply applied the same notions of statutory construction to determine that the term misfeasance, which is not defined in the statute, should be construed broadly. While the statute could not have been more broadly worded, Id. at 406, this Court was simply dealing with a single part of the statute - the interpretation of the word misfeasance. This was not a sweeping rule requiring, or even permitting, courts to ignore the plain language of the statute. The holding in Irven does not conflict with the opinion below, and does not provide the basis for jurisdiction. CONCLUSION There is no express and direct conflict between the 12
opinion below and any opinion of this Court. The Petition for review should be denied. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of Respondent s Brief on Jurisdiction was furnished by U.S. mail this 6th day of January, 2006 to Marie A. Mattox, Marie A. Mattox, P.A., 310 East Bradford Road, Tallahassee, Florida 32303. Jr. S/Harold R. Mardenborough, Harold R. Mardenborough, Jr. Fla. Bar No. 947172 Jason Taylor Fla. Bar No. 497525 Carr Allison 305 South Gadsden Street Tallahassee, Florida 32301 Attorneys for Respondent The Public Service Commission State of Florida 13