IN THE SUPREME COURT OF FLORIDA

Case No. SCO3-128

L.T. Case No.’s: 4D02-2353 AND 4D02-2401 (consolidated)

Glenda E. Hood, Secretary of v. Rep. Corrine Brown, State of the State of Florida, Rep. Alcee Hastings, Rep. Carrie Meek, and Sallie Stephens,

Petitioner Respondents

ON PETITION FOR DISCRETIONARY REVIEW OF A DECISION OF THE DISTRICT COURT OF APPEAL, FOURTH DISTRICT

BRIEF OF RESPONDENTS ON JURISDICTION

Filed on behalf of the Respondents by:

Colleen Kathryn O’Loughlin, Attorney at Law Ephraim R. Hess, Attorney at Law J. Gerald Hebert, Attorney at Law Paul M. Smith, Attorney at Law Sam Hirsch, Attorney at Law Katherine A. Fallow, Attorney at Law

TABLE OF CONTENTS

TABLE OF AUTHORITIES……………………………………………………...iii

STATEMENT OF JURISDICTION…………………………………………...…..1

STATEMENT OF THE CASE AND THE FACTS...... 1

SUMMARY OF THE ARGUMENT...... 3

ARGUMENT

I. THE DECISION BELOW DID NOT EXPRESSLY CONSTRUE A PROVISION OF THE STATE OR FEDERAL CONSTITUTION; THUS, THIS COURT DOES NOT HAVE JURISDICTION UNDER FLA. CONST. ART. V, §3(b)(3) TO REVIEW THIS CASE………………………………………...4

II. THE DISTRICT COURT DID NOT CERTIFY A QUESTION OF GREAT PUBLIC IMPORTANCE; THUS, THIS COURT DOES NOT HAVE JURISDICTION UNDER FLA. CONST. ART. V, §3(b)(4) TO REVIEW THIS CASE…………………8

III. THIS COURT DOES NOT HAVE JURISDICTION TO ADDRESS THE MERITS OF THIS CASE…………………..8

IV. THERE IS NO CASE OR CONTROVERSY FOR THIS COURT TO ADJUDICATE, AND THIS CASE SHOULD BE DISMISSED…………………………………………………...9

CONCLUSION...... 10

CERTIFICATE OF SERVICE...... 12

CERTIFICATE OF COMPLIANCE...... 12

SERVICE LIST…………………………………………………………………...13

ii TABLE OF AUTHORITIES

CASES

Allstate Ins. Co. v. Langston, 655 So.2d 91 (Fla. 1995)……………….…………...8

Armstrong v. Tampa, 106 So. 2d 407 (Fla. 1958)……….…………………………5

Brown v. Butterworth, Case Nos. 4D02-2353 and 4D02-2401, Slip Op. (Fla. 4th DCA 2002)………………………………2

Department of Revenue v. David Kuhnlein, 646 So. 2d 717 (Fla. 1994)...... 10

Florida Senate v. Forman, 27 Fla. L. Weekly S733 (Fla. 2002)…………………..6

Interlachen Lakes Estates, Inc. v. Brooks, 341 So. 2d 993 (Fla. 1976)...... 10

Miami Herald Publishing Co. v. Brautigam, 121 So. 2d 431 (Fla. 1960)………….5

Ogle v. Pepin, 273 So. 2d 391 (Fla. 1973)………………...…………………5 and 9

United States v. Dahlberg, 120 So. 2d 585 (Fla.1960)………………………8 and 9

STATUTES Fla. Const. Art. III §16……………………………………..………………………6

Fla. Const. Art. IV, §1 (c)………………………….………………..……………10

Fla. Const. Art. V, §3(b)(3)………………....………..……ii, 1, 3, 4, 5, 7, 9 and 10

Fla. Const. Art. V, §3(b)(4)………...………………….…..….……ii, 3, 8, 9 and 10

RULES

Fla. R. App. P. 9.030……………...... 4

Fla. R. App. P. 9.120…………………..……………………………………..8 and 9

Fla. R. App. P. 9.210(a)(2)……………………………………………………..…12

iii STATEMENT OF JURISDICTION

This Court does not have discretionary jurisdiction to hear this matter because the Decision of the Fourth District Court of Appeals does not expressly construe a provision of the state or federal constitution1 nor did the Fourth District

Court of Appeals certify any question or issue of great public importance for review by this Court. Furthermore, there is no case or controversy upon which this

Court may exercise its discretionary jurisdiction.

STATEMENT OF THE CASE AND FACTS

Congresswoman Corrine Brown, Congressman Alcee Hastings,

Congresswoman Carrie Meek, and Sallie Stephens, a qualified voter (Respondents in this case and Appellants/Plaintiffs below), brought an appeal to the Fourth

District Court of Appeal (hereinafter “Fourth District”), challenging the Trial

Court’s sua sponte dismissal of their claims, on the basis that there was no jurisdiction for the Circuit Court to adjudicate a Florida constitutional challenge to a Florida law apportioning congressional districts. The then President of the

Florida Senate, John McKay, (Appellant/Intervenor below) also appealed the Trial

1 The Secretary of State only asserts the constitutional construction provision of Fla. Const. Art. V, §3(b)(3) as the basis for discretionary jurisdiction in this case; hence, the Respondents will focus on that provision of Fla. Const. Art. V, §3(b)(3) herein. As for the other bases for discretionary jurisdiction pursuant to Fla. Const. Art. V, §3(b)(3), Respondents simply assert that the Decision of the Fourth District Court of Appeal does not expressly declare a state statute valid, expressly affect a class of constitutional or state officers, nor expressly and directly conflict with a decision of another district court of appeal or of this Court.

1 Court’s denial of his request to intervene in the Circuit Court. Although the

Plaintiffs and Intervenor separately appealed below, the Fourth District consolidated the appeals for review: Representative Corrine Brown;

Representative Alcee Hastings; Representative Carrie Meek; Sallie Stephens; and

Senator John McKay, President of the Florida Senate v. Robert a. Butterworth;

Attorney General; Jim Smith, Secretary of State; Tom Feeney, Speaker of the

House of Representativses; State of Florida, Case Nos. 4D02-2353 & 4D02-2401.

The Fourth District rendered its decision in Case Nos. 4D02-2353 and

4D02-2401 on October 11, 2002 reversing the two rulings of the Circuit Court. See

Brown v. Butterworth, 831 So. 2d 683 (Fla. 4th DCA 2002). The Fourth District held that the Circuit Court had subject matter jurisdiction to hear the Plaintiffs’ claims. This ruling is the subject of this appeal. (Id.) The Fourth District also held that the President of the Florida Senate was a proper, but not indispensable party to intervene in this case before the Circuit Court. 2 (Id.)

The Fourth District denied all motions for rehearing and/or certification on

December 20, 2002. The Fourth District did not certify any question or issue of great public importance.

2 In Case No. SC03-23, the AG seeks to invoke this Court’s discretionary jurisdiction on the issue of whether or not the AG is an indispensable party to all actions challenging the constitutionality of all Florida legislation, which issue was not raised on appeal to the Fourth District.

2 Neither the Attorney General (hereinafter “AG”) nor the Secretary of State

(hereinafter “Secretary”) moved to stay issuance of the Mandate in this case. On

January 10, 2002 the Fourth District issued the Mandate. On January 16, 2003, the

Respondents filed in the Circuit Court Plaintiffs’ Notice of Voluntary Dismissal

Without Prejudice as to State Of Florida, Charlie Crist (as Attorney General) and

Ken Detzner (as Secretary of State). The Secretary served his Notice to Invoke

Discretionary Jurisdiction of Supreme Court on January 21, 2003. On January 22,

2003, Respondents filed in the Circuit Court Plaintiffs’ Notice of Voluntary

Dismissal Without Prejudice as to Jim King, President of the Florida Senate.

SUMMARY OF THE ARGUMENT

This Court does not have discretionary jurisdiction to review this case pursuant to Fla. Const. Art. V, § 3(b)(3). The Fourth District’s Decision does not expressly construe a provision of the state or federal constitution.

This Court does not have discretionary jurisdiction to review this case pursuant to Fla. Const. Art. V, §3(b)(4). The Fourth District did not certify any question or issue of great public importance for review. The discretionary jurisdiction of this Court may not be invoked merely because the Secretary deems there to be an issue of great public importance

Since there is no basis for jurisdiction, the Secretary argues the merits of this case. Arguing the merits of the case in a brief on jurisdiction is improper. This

3 Court does not have jurisdiction to address the merits of this case.

Additionally, there is no case or controversy for this Court to review since the Respondents voluntarily dismissed all adverse parties after the issuance of the

Mandate. If this Court were to issue an opinion in this case, it would merely be an advisory opinion. This Court should dismiss this case.

ARGUMENT

I. THE DECISION BELOW DID NOT EXPRESSLY CONSTRUE A PROVISION OF THE STATE OR FEDERAL CONSTITUTION; THUS, THIS COURT DOES NOT HAVE JURISDICTION UNDER FLA. CONST. ART. V, §3(b)(3) TO REVIEW THIS CASE

In order to invoke this Court’s discretionary jurisdiction pursuant to Fla.

Const. Art. V, §3(b)(3), the Fourth District’s Decision must expressly construe a provision of the state or federal constitution. The Fourth District’s decision does not expressly construe any provision of the state or federal constitution.

In 1980, Article V §3(b) of the Florida Constitution was amended to limit this Court’s caseload and preserve appellate resources. See Fla. R. App. P. 9.030,

1980 Committee Notes. Fla. Const. Art.V, §3(b) sets forth the sole bases for this

Court’s jurisdiction. Pursuant to Fla. Const. Art. V, §3(b)(3) this Court may review a decision of a district court of appeal that expressly construes a provision of the state or federal constitution. When Fla. Const. Art. V, §3(b)(3) was revised in 1980, the language of this section became more restrictive by the inclusion of

4 the term “expressly”. To invoke this Court’s jurisdiction under this provision, the construction of a state or federal constitution must be express and actual. To be an actual construction, the district court must “explain, define or otherwise eliminate existing doubts arising from the language or terms of the constitutional provision.”

Armstrong v. Tampa, 106 So. 2d 407, 409 (Fla. 1958). Decisions which merely apply state or constitutional principles to the facts of a case cannot be deemed to construe a constitutional provision. (Id.) The inherency doctrine does not apply to jurisdiction based on construction. See Ogle v. Pepin, 273 So. 2d 391 (Fla. 1973).

This Court does not have discretionary jurisdiction to review a decision which has the mere effect of construing a provision of the state or federal constitution. See

Miami Herald Publishing Co. v. Brautigam, 121 So. 2d 431 (Fla. 1960). Due to the use of the permissive term “may” in Fla. Const. Art. V, §3(b)(3), this Court may decline to exercise its discretionary jurisdiction even when a decision expressly construes a provision of the state or federal constitution.

The Secretary states that the Fourth District expressly construes various provisions of both the state and federal constitutions, but the Secretary does not state with specificity how the Decision expressly construes provisions of the state and federal constitutions.

5 The Secretary asserts that this Court’s discretionary jurisdiction is invoked because the Fourth District reviewed this Court’s recent decisions, which decisions construed Fla. Const. Art. III, §16, approved of circuit court jurisdiction in Florida

Senate v. Forman, 27 Fla. L. Weekly S733 (Fla. 2002), and “repeatedly invoked article III, section 16 of the Florida Constitution and the Equal Protection clauses of both the United States and Florida Constitutions.” (Secretary’s Brief at 3 and

5).3 Review of this Court’s decisions which decisions construe constitutional provisions does not constitute the Fourth District’s express construction of a constitutional provision.

The Secretary also asserts that the Fourth District found that the “state constitution grants the circuit court power over federal elections;” the “district court relied primarily on little more than that the state constitution provides no express bar to challenging reapportionment in circuit court;” “the Fourth District concluded that an action founded on state law may be brought in state court with regard to federal Congressional redistricting; and “by extending the reach of the state constitution to federal offices the Fourth District construed the state constitution to create a new parallel state forum to attack federal

3 The Respondents will refer to Amended Initial Brief on Jurisdiction of Petitioner Secretary of State Glenda E. Hood hereinafter as Secretary’s Brief.

6 reapportionment.4” (Id.) Jurisdiction under Fla. Const. Art. V, §3(b)(3) is dependent on whether the Decision expressly construes a constitutional provision, and the Secretary points to no such constitutional provision construed by the

Fourth District.

The Secretary also claims that the Fourth District based its Decision on this observation: “[w]e find nothing in the Florida Constitution that expressly and clearly vests all apportionment claims in some court other than the circuit court.”

(Id. At 6) This statement does not construe a provision of the Florida Constitution, but rather reflects the Fourth District’s observation of the absence of a provision.

It would defy logic to assert that this statement amounts to construction of a provision that the Fourth District could not find.

The Secretary does not point to, nor is there, one constitutional provision that the Fourth District’s Decision actually and expressly construed, and thus this

Court does not have discretionary jurisdiction pursuant to Fla. Const. Art. §3(b)(3) and should dismiss this case.

4 Footnote 3 of the Secretary’s Brief also claims that the Decision below resulted from the Fourth District’s “mistaken impression that Plaintiffs had raised concurrent federal claims” which is also untrue. (Secretary’s Brief at 3.) On page 4 of the Decision, which page the Secretary cites for such claim, the Fourth District unequivocally states: “In this case plaintiffs challenge the plan as applied to their districts and allege that it violates the Florida Constitution. We also note that that their claims have many of the characteristics of a VRA section 2(b) claim.” Furthermore, the Fourth District noted: “[A]lthough the plaintiffs in this case have pleaded a claim of partisan gerrymandering under state law, their complaint refers to the VRA.”

7 II. THE DISTRICT COURT DID NOT CERTIFY A QUESTION OF GREAT PUBLIC IMPORTANCE; THUS, THIS COURT DOES NOT HAVE JURISDICTION UNDER FLA. CONST. ART. V, §3(b)(4) TO REVIEW THIS CASE

In order to invoke this Court’s discretionary jurisdiction pursuant to Fla.

Const. Art. V, §3(b)(4), the Fourth District’s Decision must pass upon a question certified by it to be of great importance. The Fourth District’s Decision did not certify a question or issue to be of great public importance. It matters not whether the Secretary deems a question or issue to be of great public importance. As this

Court has noted, “[t]his Court does not have jurisdiction to review cases that a party deems to present an issue of great public importance. This Court may only review questions of great public importance that are certified by a district court of appeal. See Allstate Ins. Co. v. Langston, 655 So.2d 91, 93 (Fla. 1995); United

States v. Dahlberg, 120 So. 2d 585 (Fla. 1960). Since the Fourth District did not certify any question or issue of great public importance, this Court does not have jurisdiction to address the parade of horribles prophesied by the Secretary and should dismiss this case.

III. THIS COURT DOES NOT HAVE JURISDICTION TO ADDRESS THE MERITS OF THIS CASE.

There is no basis for this Court to exercise its discretionary jurisdiction to review this case. Since there is no basis for discretionary jurisdiction, the

Secretary focuses on the merits of this case and other irrelevant matters. Fla. R.

8 App. P. 9.120 requires that the Petitioner’s brief be “limited solely to the issue of the supreme court’s jurisdiction.” 1977 Committee Notes to Fla. R. App. P. 9.120 state: “[i]t is improper to argue the merits of the substantive issues involved in the case or discuss any matters not relevant to the threshold jurisdictional issue.” This

Court does not have discretionary jurisdiction pursuant to either Fla. Const. Art V,

§3(b)(3) or §3(b)(4) to address the merits of this case, and should dismiss this case.

See Ogle v. Pepin, 273 So. 2d 391 (Fla. 1973); United States v. Dahlberg, 120 So.

2d 585 (Fla.1960).

IV. THERE IS NO CASE OR CONTROVERSY, AND THIS CASE SHOULD BE DISMISSED

There is no case or controversy for this Court to review since the

Respondents voluntarily dismissed all adverse parties, subsequent to the issuance of the Mandate by the Fourth District. Since neither the AG nor the Secretary moved to stay the issuance of the Mandate, the case became final when the

Mandate issued and a justiciable case no longer exists as a result of the previously mentioned Notices of Voluntary Dismissal. In short, there is no “case or controversy” for this Court to rule on.

For this Court to render an opinion where no actual case or controversy exists would make such an opinion purely advisory. This Court has long held that the courts should not issue advisory opinions:

9 “[E]xcept as otherwise required by the constitution, Florida recognizes a general standing requirement in the sense that every case must involve a real controversy as to the issue or issues presented. See Interlachen Lakes Estates, Inc. v. Brooks, 341 So. 2d 993 (Fla. 1976). Put another way, the parties must not be requesting an advisory opinion, id., except in those rare instances in which advisory opinions are authorized by the Constitution. E.g., art. IV, § 1(c), Fla. Const. (advisory opinions to Governor).

Department of Revenue v. David Kuhnlein, 646 So. 2d 717, 721 (Fla. 1994).

Therefore, this Court should dismiss the pending request for the Court to exercise its discretionary jurisdiction.

CONCLUSION

There is no jurisdiction for this Court to review this case. The Fourth

District’s decision did not expressly construe a provision of the state or federal constitution; hence, there is no discretionary jurisdiction pursuant to Fla. Const.

Art. V, §3(b)(3). The Fourth District did not certify any question; thus, there is no discretionary jurisdiction pursuant to Fla. Const. Art. V, §3(b)(4). Additionally, there is no case or controversy upon which this Court can exercise its discretionary jurisdiction, as the underlying case has been dismissed.

This Court should decline to exercise its discretion to review this case, and dismiss this case.

10 Dated: this day of October, 2003

Respectfully submitted,

COLLEEN KATHRYN O’LOUGHLIN Florida Bar No. 0042528 EPHRAIM R. HESS Florida Bar No. 983100 HESS & O’LOUGHLIN, P.A. P.O. Box 460505 Ft. Lauderdale, FL 33346-0505 Telephone: (954) 467-5505 Facsimile: (954) 252-4536

J. GERALD HEBERT 5019 Waple Lane Alexandria, VA 22304 Telephone: (703) 567-5873 Facsimile: (703) 567-5876

PAUL M. SMITH SAM HIRSCH KATHERINE A. FALLOW JENNER & BLOCK LLC 601 13th Street N.W. Washington, DC 20005 Telephone: (202) 639-6000 Facsimile: (202) 639-6066

Attorneys for Respondents

11 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Brief has been served via U.S. Mail on this day of October 2003, to: SEE

ATTACHED SERVICE LIST.

COLLEEN KATHRYN O’LOUGHLIN Florida Bar No. 0042528 HESS & O’LOUGHLIN, P.A. Counsel for Respondents P.O. Box 460505 Ft. Lauderdale, FL 33346-0505 Telephone: (954) 467-5505 Facsimile: (954) 252-4536

CERTIFICATE REGARDING TYPE STYLE AND SIZE

I HEREBY CERTIFY that this computer-generated Brief complies with the font requirements of Fla. R. App. P. 9.210(a)(2), as it is being submitted in

Times New Roman 14-point font.

COLLEEN KATHRYN O’LOUGHLIN

12 SERVICE LIST:

Hon. Charlie Crist, Jr., Esq., Attorney Joseph P. Klock, Jr., Esq. General John W. Little, III, Esq. Christopher M. Kise, Esq., Solictor Arthur R. Lewis, Jr., Esq. General Gabriel E. Nieto, Esq. Charles M. Fahlbusch, Esq., Asst. Juan Carlos Antorcha, Esq. Attorney General Counsel for Secretary of State Ken OFFICE OF THE SOLICITOR Detzner GENERAL Steel Hector & Davis LLP The Capitol – PL-01 200 South Biscayne Blvd., Tallahassee, FL 32399 Suite 4000 Telephone: (850) 414-3681 Miami, Florida 33131-2398 Facsimile: (850) 410-2672 Telephone: (305) 577-2855 Facsimile: (305) 577-7001 Kathleen Von Hoene, Esq. Deputy Attorney General William R. Scherer, Esq. Counsel for Defendants, State of Conrad & Scherer, LLP Florida, and Charles J. Crist, Jr. Counsel for Senate President Jim 110 Southeast 6th Street King 10th Floor Post Office Box 14723 Fort Lauderdale, Florida 33301 Fort Lauderdale, Florida 33302 Telephone: (954) 712-4670 Telephone: (954) 462-5500 Facsimile: (954) 712-4700 Facsimile: (954) 463-9244

L. Clayton Roberts, Esq. James A. Scott, Esq. Counsel for Secretary of State Ken Edward J. Pozzuoli, Esq. Detzner Alexis M. Yarbrough, Esq. Florida Department of State Counsel for Senate President Jim PL-02, The Capitol King Tallahassee, FL 32399-0250 Tripp Scott, P.A. Telephone: (850) 245-6517 110 S.E. 6th Street, 5th Floor Facsimile: (850) 245-6125 Fort Lauderdale, Florida 33301 Telephone: (954) 525-7500 Facsimile: (954) 761-8475

13 SERVICE LIST CONTINUED:

Thomas E. Scott, Esq. Counsel for Senate President Jim King Cole, Scott, & Kissane, P.A. 1390 Brickell Avenue, 3rd Floor Miami, Florida 33131 Telephone: (305) 350-5300 Facsimile: (305) 373-2294

J. Gerald Hebert, Esq. Co-counsel for Respondents 5019 Waple Lane Alexandria, VA 22304 Telephone: (703) 567-5873 Facsimile: (703) 567-5876

Paul M. Smith, Esq. Sam Hirsch, Esq. Katherine Fallow, Esq. Co-counsel for Respondents Jenner & Block 601 13th Street N.W. Washington, DC 20005 Telephone: (202) 639-6000 Facsimile: (202) 639-6066

Steven G. Burton, Esq. Counsel for Amicus Curiae House Speaker Johnnie Bryd Broad & Cassel 100 N. Tampa Street Suite 3500 Tampa, Florida 33602 Telephone: (813) 225-3020 Facsimile: (813) 204-2123

14