IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO. SC07-2284 Lower Tribunal No.: 4D05-4371 JOHN KAZANJIAN, ETC. Petitioner, vs. SCHOOL BOARD OF PALM BEACH COUNTY, FLORIDA, ET. AL. Respondent. PETITIONER'S BRIEF ON JURISDICTION JUDY HYMAN JUDY HYMAN LAW OFFICES P.L. 1016 Clearwater Place - Suite 2 West Palm Beach, Florida 33401 Telephone: (561) 833-4006 FLORIDA BAR No. 0353728 Counsel for Petitioner JOHN MCGOVERN Robert M. Montgomery, Jr. & Associates, P.L. 1016 Clearwater Place West Palm Beach, Florida 33401 Telephone: (561) 832-2880 FLORIDA BAR No. 0385130 Co-Counsel for Petitioner
TABLE OF CONTENTS TABLE OF AUTHORITIES... ii PRELIMINARY STATEMENT... 1 JURISDICTIONAL STATEMENT 1 STATEMENT OF THE CASE AND FACTS. 1 SUMMARY OF THE ARGUMENT... 1, 2 ARGUMENT... 2 THE DECISION OF THE FOURTH DISTRICT COURT OF APPEALS DECISION AFFECTS A CLASS OF CONSTITUTIONAL OFFICERS. CONCLUSION... 8 CERTIFICATE OF SERVICE... 9 CERTIFICATE OF TYPE SIZE... 10 APPENDIX. A i
TABLE OF AUTHORITIES CASES Amstrong v. Edgewater, 157 So.2d. 422 (Fla. 1963) 5 Gardner v. Johnson, 451 So.2d 477 (Fla. 1984)... 6 Kaisner v. Kolb, 543 So. 2d 732, (Fla. 1989) 8 McCain v. Florida Power Corp., 593 So.2d 500 (Fla. 1992).8 Sams v. Oelrich, 717 So.2d 1044 (Fla. 1 st DCA 1998). 7 Southeastern Fishiers Ass., Inc. v. Dept. Of Natural Resources, 453 So. 2d 1351(Fla. 1984).. 5 STATUTES/RULES Article V. Section 3(b)(3)... 1,2 Fla. R. App. P. 9.030(a)(2)(A)(iii) 1 FS 984.151.... 3 FS 1000.01.6 FS 1003.26... 3, 4, 6 FS 1003.26(1)(b)... 4 ii
PRELIMINARY STATEMENT The Petitioner was the Plaintiff and the Respondent was the Defendant in Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida. The trial court without opinion granted the Defendant s Motion for Summary Judgment and the Fourth affirmed. Petitioner was the Appellant and the Respondent was the Appellee in the Fourth District Court of Appeals. In this brief the parties will be referred to by name. JURISDICTIONAL STATEMENT The Florida Supreme Court has discretionary jurisdiction to review a decision of a District Court of Appeals that expressly affects a class of constitutional or state officers. Fla. R. App. P. 9.030(a)(2)(iii). The School Board constitutes a class of constitutional officers. STATEMENT OF THE CASE AND FACTS The relevant facts to determination of this Court s discretionary jurisdiction under Article V. Section 3(b)(3) of the Florida Constitution are set forth in the appellate opinion sought to be reviewed. A copy of the opinion is contained in the appendix to this brief. (Attached hereto and referred to as A ) SUMMARY OF THE ARGUMENT 1
This court should accept jurisdiction to review the instant case because the opinion of the Fourth District Court of Appeals expressly affects a class of constitutional officers. ARGUMENT THE DECISION OF THE FOURTH DISTRICT COURT OF APPEALS IS IN DIRECT CONFLICT WITH THE CLEAR DICTATES OF STATUTORY CONSTRUCTION AND LEGISLATIVE INTENT RELATING TO SCHOOL TRUANCY AND AFFECTS A CLASS OF CONSTITUTIONAL OFFICERS. JOHN KAZANJIAN sued the School Board for negligence. The basis of his claim was that the Board s failure to implement statutory protections and supervision for truant students resulted in his daughter s death. JOHN KAZANJIAN also alleged that the Board increased the zone of foreseeable risk to his daughter by allowing unsafe student drivers to continue to park on school property. Supplemental facts are as follows: At the time of Kaitlin Kazanjian s death (hereinafter referred to as Kaitlin) Carlos Pozo and Courtney Lawrensen were students legally attending Dwyer High School. Kaitlin cut school after she and her friends attended first period, less than one half hour later Kaitlin was killed in a car crash. Dwyer High School adopted a block scheduling system. This means that one block is equal to two classes. The absence report generated by the Board evidences that Kaitlin and the other children who skipped had garnered over 15 unexcused absences from their classes. (See A) 2
JOHN KAZANJIAN submits that this Court has jurisdiction because the decision affects a class of constitutional or state officers. See Article V. Section 3(b)(3), Fla. Const. The Fourth s opinion, ignored written Board policy and the legislative intent and on their own, legislated the manner in which to count absences as a matter of law. Their opinion improperly calculates the manner in which absences county toward truancy and is in direct contravention to school board policy and the Florida Statutes. This issue although not certified is a matter of great public importance. This State has enacted a series of laws intended to provide a safety net for children who become truant from school. The truancy statues provides that when a child absences himself from school without authorization a child safety team be notified consulted and be ready to act on behalf of the child. Also the superintendent, parents (in writing) as well as the DMV must be notified when a child exhibits a pattern of cutting school. See, FS 1003.26; 984.151;(A). This series of notifications puts into effect an intervention method to stop children from leaving school during school hours. The child study team works towards in-school solutions and the DVM either revokes or suspends the child s license. The DMV notification has the dual purpose of keeping children from leaving 3
school and stopping those who skip school from dangerous driving. It is well known that teenage drivers cause a disproportionate share of traffic fatalities. 4
Here, the Board did nothing because they had no child study team and no uniform method of determining a child s absence. The Constitutional officers are confused, testifying on one hand that absences were counted by the minutes to on the other hand counting absences by the day. In passing the truancy statutes the State recognized that poor academic performance was associated with nonattendance and therefore, the schools must take an active role in enforcing attendance. FS 1003.26. Although the legislation did not specifically define absence, the written School Board truancy policy defines absence as not being present when attendance is checked, which would include each and every class. Policy 6Gx50-5.187. Absence is a singular concept. The Statute section referring to attendance entitled Contact, refer and enforce states that each unexcused absence... will be counted. Upon a student having a requisite number of absences the Board s statutory obligations kick-in. Some of the Board s obligations enumerated in Florida Statute FS 1003.26 (1)(b)are as follows: The principal shall,... refer the case to the school s child study team to determine if early patterns of truancy are developing, whether the absences are excused or not, a meeting with the parent must be scheduled to identify potential remedies, and the principal shall notify the district school superintendent and the school district contact for home educational programs that the referred student is exhibiting a pattern of nonattendance. 5
(Emphasis added) The above obligations begin when child has 5 unexcused absences not 5 absent days. However the Fourth s position is any missed part of the day can count toward an absence but a student cannot accumulate more than one absence per day no matter how many classes he or she misses. (A-4) This is not what the legislature intended and clearly misstates the Board s policy. The Fourth relies upon the statute s silence to constrict the Board s obligations to its students.(a-4) The statutory silence as to how to count absences does not allow the Fourth to insert words that to all appearances were not in the minds of the legislatures when the law was enacted. When there is doubt as to the legislative intent or where speculation is necessary, then the doubts should be resolved against the power of the court to supply missing words. Armstrong v. Edgewater, 157 So.2d. 422 (Fla. 1963). This Court should also consider as relevant the legislative intent as evidenced by its employment of the singular terms for truancy to-wit: each and every. This singular term each and especially the term every must be interpreted by its common usage. The cardinal rule of statutory construction requires that, unless otherwise defined or limited by manifest legislative intent, statutory language is to be given its plain and ordinary meaning. Southeastern Fishiers Ass., Inc. V. Dept. Of Natural Resources, 6
453 So. 2d 1351(Fla. 1984). When the critical words are not statutorily defined, they can be readily understood by reference to commonly accepted definitions. See Gardner v. Johnson, 451 So.2d 477 (Fla.1984) Every in reference to a truancy must refer to each singular time a student leaves school without authorization. Not only is it clear from the language of the statute that all absences are to be included in order to determine truancy; looking at the plain meaning of the terms early each and every indicates that the legislature meant for interventions to be put calculated and put into place by counting each and every missed class so that the earliest opportunity to stem truancy will be effectuated. In further support of that the legislature intended the most expansive reading of the term absence is found in FS 1000.01, which states: The provisions of the Florida K-20 Education code shall be liberally construed to the end that its objectives may be effected. The educational code of the Florida statutes must inure to the benefit of the child affording him as much protection under the law as possible because the objectives of the education code are to keep children in school and safe. The legislative objectives of the truancy statutes is to provide aid and assistance as soon as a student exhibits a pattern of non-attendance. 1003.26 et. Seq 7
In contrast to the clear meaning of the statue and the Board s policy the Fourth held that as a matter of law it would be incorrect to interpret the statute to mean that each missed class is a separate absence.(a-3,4) Utilizing the Fourth s interpretation of the Board s policy a student could check in and out of school all day garnering only one absence. This dangerous precedent should not be followed as it violates public policy. The Fourth s opinion has a far reaching effect and this issue is a matter of first impression. The legislature intended that Schools be vigilant in resolving truancy and helping children stay in school while the Fourth has determined that one day or one period is the same thing as far as truancy is concerned. This could not be what the legislature intended. In the event that any of the child safety truancy procedures were put in place Kaitlin would have been placed within the safety net and would be alive today. The Fourth s decision must be revisited so that all children entitled to protections be afforded them. II. A special relationship supporting common-law duty may arise between governmental entity and tort victim where conduct of governmental entity creates foreseeable zone of risk. This foreseeable zone of risk gives rise to coextensive duty of care as a matter of law. Sams v. Oelrich, 717 So.2d 1044 (Fla. 1 st DCA 1998). When a defendant's conduct creates a 8
foreseeable zone of risk than a duty is created to either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses. Kaisner v. Kolb, 543 So. 2d 732, (Fla. 1989); McCain v. Florida Power Corp, 593 S.2d 500 (Fla. 1992). In this case Carlos Pozo was stopped in the school parking lot twice for dangerous driving. Yet, the Board did nothing to stop him from parking on school property. In the event that Pozo was stopped from parking on school property, he would not have been able to drive to school and use his car to cut class. The Fourth determined that although the School allowed parking permits and accepted money for the permits, they had no duty to make sure the parking lot was safe. The board s failure to act when faced with a dangerous driver increases the zone of danger for all students. This is failure to act is negligent and falls within the board s discretionary responsibilities. The Fourth found safety in the parking lot to be operational and subject to sovereign immunity. The Fourth opinion has stretched the definition of operational rendering McCain obsolete. Id. Because the Fourth has broaden the concept of operational in a manner which would affect constitutional officers this court should accept jurisdiction over this cause. 9
CONCLUSION Wherefore, based upon the foregoing arguments and authorities cited therein, JOHN KAZANJIAN, respectfully requests this Court GRANT his request for discretionary review over the instant cause of action. Respectfully submitted, JUDY HYMAN JUDY HYMAN LAW OFFICES P.L. 1016 Clearwater Place - Suite 2 West Palm Beach, Florida 33401 Telephone: (561) 833-4006 FLORIDA BAR No. 0353728 Counsel for Petitioner JOHN MCGOVERN Robert M. Montgomery, Jr. & Associates 1016 Clearwater Place Telephone: (561) 832-0887 FLORIDA BAR No. 0385130 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing has been furnished by U. S. Mail this 8 th day of January, 2008, to: Mark A. Hendricks, Mark A. Hendricks, Esquire, Lydecker, Lee, Behar, Berga & De Zayas, 10
L.L.C., 1201 Brickell Avenue, Fifth Floor, Miami, Florida, 33131, Attorneys for Appellee. JUDY HYMAN JUDY HYMAN LAW OFFICES P.L. 1016 Clearwater Place - Suite 2 West Palm Beach, Florida 33401 Telephone: (561) 833-4006 FLORIDA BAR No. 0353728 Counsel for Petitioner P.L. JOHN MCGOVERN Robert M. Montgomery, Jr. & Associates 1016 Clearwater Place Telephone: (561) 832-0887 FLORIDA BAR No. 0385130 Co-Counsel for Petitioner CERTIFICATE OF TYPE SIZE & STYLE Appellant hereby certifies that the type size and style of the Petitioner s Brief on Jurisdiction for Supreme Court of the State of Florida is Times New Roman 14pt. JUDY HYMAN JUDY HYMAN LAW OFFICES P.L. 1016 Clearwater Place - Suite 2 West Palm Beach, Florida 33401 Telephone: (561) 833-4006 FLORIDA BAR No. 0353728 Counsel for Petitioner 11
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