IN THE SUPREME COURT OF THE STATE OF FLORIDA COUNTY OF ORANGE, vs. Petitioner, CASE NO.: SC04-2045 Lower Tribunal No.: 5D03-4065 RALEIGH WILSON, SR. EVELYN WILSON and RALEIGH WILSON, JR., Respondents. / JURISDICTIONAL BRIEF OF PETITIONER On Petition for Review of a Decision of the District Court of Appeal, Fifth District, State of Florida GRETCHEN R. H. VOSE, ESQUIRE Florida Bar No.: 169913 WADE C. VOSE, ESQ. Florida Bar No. 685021 Vose Law Firm, LLC 527 Wekiva Commons Circle Apopka, Florida 32712 Telephone: (407) 645-3735 Facsimile: (407) 628-5670 Attorneys for Petitioner, Orange County, Florida
TABLE OF CONTENTS Table of Authorities...... ii Statement of the Case and Facts 1 Summary of Argument.. 2 Argument.. 2 Page I. The Fifth District s Decision Expressly Construes A Provision of the United States Constitution. 2 II. The Fifth District s Decision Expressly And Directly Conflicts With A Decision Of Another District Court Of Appeal On The Same Question Of Law. 3 Conclusion.... 4 Certificate of Service 5 Certificate of Compliance. 5 Appendix i
TABLE OF AUTHORITIES Cases Hollywood Lakes Section Civic Association, Inc. v. City of Hollywood, 676 So.2d 500, (Fla. 4th DCA 1996)... 3 Mathews v. Eldridge, 424 U.S. 319 (1976)... 2 Salcido v. Woodbury County, 119 F.Supp. 900 (N.D. Iowa 2000).... 3 Stauch v. City of Columbia Heights, 212 F.3d 425 (8th Cir. 2000)..... 3 Wilson v. Orange County, 881 So.2d 625 (Fla. 5th DCA 2004)... 2 Wolk v. Orange County, No. 6:01-CV-141-ORL-28DAB (M.D. Fla. Nov. 5, 2002) 3, 4 Other Authorities 42 U.S.C. 1983.... 1 Article V, 3(b)(3), Florida Constitution.. 2 U.S. Const. Amend. V.. 2 U.S. Const. Amend. XIV.. 2 Chapter 162, Florida Statutes 4 Section 86.011, Florida Statutes.... 4 Section 86.021, Florida Statutes.... 4 ii
STATEMENT OF THE CASE AND FACTS This case involves the order of the Fifth District Court of Appeal reversing the dismissal with prejudice of the Wilson s five count Complaint against Orange County. The Complaint in the circuit court was brought pursuant to 42 U.S.C. 1983 for damages for alleged violation of Appellants constitutional rights, (Count I), and for declaratory relief requesting that the court declare certain Florida Statutes and Orange County ordinances unconstitutional (Counts II, III, IV, and V). The subject matter of the case relates to several Orange County Code Enforcement Board ( CEB ) proceedings and resulting CEB liens. The underlying CEB cases related to several rental residential mobile homes with a multitude of code violations, including numerous electrical, structural, and sanitary violations. The Wilsons failed to exhaust their administrative remedies by failing to timely appeal the CEB orders that formed the basis for the CEB liens. The Wilson s circuit court action was the Wilson s attempt to collaterally attack, by declaratory judgment action and civil rights claim, decisions of the Orange County Code Enforcement Board that were never appealed as provided by statute. In reversing the trial court s dismissal of County I, the Wilson s claim under 42 U.S.C. 1983, the Fifth DCA held that the application of the Mathews Test to determine whether a statutory scheme comports with due process was to be decided wholly as a question of fact by the jury, and held that the Mathews Test is 1
not amenable to decision on a motion to dismiss. As to the Wilson s declaratory judgment actions, the Fifth DCA reversed the trial court s dismissal with prejudice, despite the Wilson s attempt to utilize the declaratory judgment statute as a device of collateral attack on the final judgments entered by the Orange County Code Enforcement Board. SUMMARY OF ARGUMENT This Court has discretionary jurisdiction to review the decision of the Fifth DCA pursuant to Article V, 3(b)(3), Florida Constitution, because the decision below expressly construes a provision of the United States Constitution, and expressly and directly conflicts with a decision of another district court of appeal on the same question of law. ARGUMENT I. The Fifth District s Decision Expressly Construes A Provision of the United States Constitution. In addressing the Wilson s civil rights claim, the Fifth DCA construed the Fifth and Fourteenth Amendments to the U.S. Constitution with regard to what is commonly referred to as the Mathews Test, after the U.S. Supreme Court case announcing the test used to determine whether a statutory scheme provides adequate due process. Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The Fifth DCA decision below relating to the Mathews Test incorrectly construed a provision of the U.S. Constitution, by holding that the 2
application of the Mathews Test to determine whether a statutory scheme comports with due process is to be decided wholly as a question of fact by the jury. Wilson v. County of Orange, 881 So.2d 625, 630 (5th DCA 2004). In fact, there are two stages to the application of the Mathews Test. First, the court is to determine as a matter of law whether the statutory scheme itself comports with due process. Then the jury is to determine the as applied portion of the test as a question of fact, by deciding whether the statutory scheme was in fact applied under the facts of the particular case. See Stauch v. City of Columbia Heights, 212 F.3d 425 (8th Cir. 2000) ( Although, the question of whether the procedural safeguards provided for in the Code are adequate to satisfy due process is a question of law for the court to determine, whether the City indeed provided the Stauches with such procedure is a question of fact for the jury. ); Salcido v. Woodbury County, 119 F.Supp.2d 900 (N.D. Iowa 2000). The decision below would provide that a jury should determine as a matter of fact whether a statutory scheme itself comports with due process. If the decision below stands as written, the opinion would incorrectly construe the Fifth and Fourteenth Amendments under established federal law, and would turn over for decision by a jury matters which are clearly issues of law. Further, the Fifth DCA incorrectly held that the Mathews Test determination as to whether a statutory scheme comports with due process is not amenable to determination on a motion to dismiss. See Wolk v. Orange County, No. 6:01-CV- 3
141-ORL-28DAB (M.D. Fla. Nov. 5, 2002) (on motion to dismiss, applying Mathews Test and engaging in full analysis of Mathews Factors, and dismissing complaint with prejudice on holding that the statutory scheme under Ch. 162, Florida Statutes, and the Orange County Code comports with due process). II. The Fifth District s Decision Expressly And Directly Conflicts With A Decision Of Another District Court Of Appeal On The Same Question Of Law. The Fifth DCA opinion below is also contrary to the established Florida case law as set forth in Hollywood Lakes Section Civic Association, Inc. v. City of Hollywood, 676 So.2d 500, (Fla. 4th DCA 1996), which held that the declaratory decree statute is no substitute for the established procedure for review of final judgments or decrees, and held that the declaratory decree statute is not a device for collateral attack on final judgments or decrees, construing Florida Statutes, Section 86.011 and 86.021. CONCLUSION This Court has discretion to grant review. Based upon the foregoing argument and authority cited, review should be granted. Respectfully Submitted, GRETCHEN R. H. VOSE, ESQUIRE 4
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing has been furnished by United States mail this 17th day of November, 2004, to: Charlie S. Martin, Esquire, 48 East Main Street, P.O. Drawer 950, Apopka, Florida 32704-0950, Attorney for Respondents. GRETCHEN R. H. VOSE, ESQUIRE Florida Bar No. 169913 WADE C. VOSE, ESQUIRE Florida Bar No. 685021 Vose Law Firm, LLC 527 Wekiva Commons Circle Apopka, Florida 32712 Phone (407) 645-3735 Facsimile (407) 628-5670 Attorney for Petitioner CERTIFICATE OF COMPLIANCE In compliance with Fla. R. App. P. 9.210, (a)(2), the undersigned certifies that the font in this brief is Times New Roman with 14-point type. GRETCHEN R. H. VOSE, ESQUIRE Florida Bar No. 169913 WADE C. VOSE, ESQUIRE Florida Bar No. 685021 Vose Law Firm, LLC 527 Wekiva Commons Circle Apopka, Florida 32712 Phone (407) 645-3735 Facsimile (407) 628-5670 Attorney for Petitioner 5