SC12-216 Jurisdictional Brief

IN THE SUPREME COURT OF FLORIDA

CASE NO. 12-216

Lower Court Case No.: 1D10-6285

MIKE HARIDOPOLOS, in his official capacity as the Florida Senate President,

Petitioner

vs.

CITIZENS FOR STRONG SCHOOLS, INC.; FUND EDUCATION NOW; EUNICE BARNUM; DEAN CANNON, in his official capacity as the Florida Speaker of the House of Representatives; DR. ERIC J. SMITH, in his official capacity as Florida Commissioner of Education; and FLORIDA STATE BOARD OF EDUCATION, JANIYAH WILLIAMS; JACQUE WILLIAMS; SHEILA ANDREWS; ROSE NOGUERAS; and ALFREDO NOGUERAS,

Respondents.

JURISDICTIONAL BRIEF OF THE SPEAKER OF THE FLORIDA HOUSE OF REPRESENTATIVES

George T. Levesque (FBN 555541) [email protected] Don Rubottom (FBN 160271) [email protected]

Teresa Ward (FBN 343692) [email protected] Office of General Counsel Florida House of Representatives 422 The Capitol Tallahassee, Florida 32399-1300 850-488-7631; 850-488-0376 (fax)

TABLE OF CONTENTS

TABLE OF CITATIONS...... ii

STATEMENT OF THE CASE ...... 1

SUMMARY OF JURISDICTIONAL ARGUMENT...... 3

JURISDICTION ARGUMENT

I. REVIEW UNDER FLORIDA CONSTITUTION, ARTICLE V, SECTION 3(b)(3) IS INAPPROPRIATE BECAUSE THE DECISION OF THE FIRST DISTRICT COURT OF APPEAL ONLY NARROWLY DENIED THE WRIT OF PROHIBITION AND DID NOT CONSTRUE ANY PROVISION OF THE FLORIDA CONSTITUTION...... 3

II. REVIEW UNDER FLORIDA CONSTITUTION, ARTICLE V, SECTION 3(b)(4) IS INAPPROPRIATE BECAUSE THERE IS NO CLEAR MAJORITY DECISION OF THE DISTRICT COURT OF APPEAL PASSING UPON THE CERTIFIED QUESTION...... 8

III. THIS COURT WILL HAVE AN OPPORTUNITY TO REVIEW THE CONSTITUTIONAL ISSUES PRESENTED TO THE FIRST DISTRICT COURT OF APPEAL ON DIRECT APPEAL...... 10

CONCLUSION...... 11

CERTIFICATE OF SERVICE...... 12

CERTIFICATE OF COMPLIANCE...... 13

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TABLE OF CITATIONS

CASES

Boler v. State, 678 So.2d 319 (Fla. 1996)...... 9, 10

Bunkley v. State, 882 So.2d 890 (Fla. 2004)...... 4

Byrd v. State, 880 So.2d 616 (Fla. 2004)...... 4

Finkelstein v. Dept. of Trans., 656 So.2d 921 (Fla. 1995)...... 9

Floridians For A Level Playing Field v. Floridians Against Expanded Gambling, 967 So.2d 832 (Fla. 2007)...... 8, 9

Gibson v. Maloney, 231 So.2d 823 (Fla.1970)...... 4

Jenkins v. State, 385 So.2d 1356 (Fla. 1980)...... 4, 7, 9

State v. Barnum, 921 So.2d 513 (Fla. 2005)...... 4

State v. Wellington Precious Metals, Inc., 510 So.2d 902 (Fla. 1987)...... 5, 6

State v. Wellington Precious Metals, Inc., 487 So.2d 326 (Fla. 3rd DCA 1986). . . 6

CONSTITUTION

Article V, § 3(b)(3) of the Florida Constitution...... 3, 4, 7

Article V, § 3(b)(4) of the Florida Constitution...... 2, 3, 8

Article IX, § 1 of the Florida Constitution...... 1, 2, 3, 5, 7, 8, 9

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OTHER AUTHORITIES

Fla. R. App. P. 9.030(a)(2)(A)(ii)...... 4

Operation and Jurisdiction of the Florida Supreme Court, Justice Gerald Kogan & Robert Craig Waters, 18 Nova L.Rev. 1151 (1994)...... 4

Operation and Jurisdiction of the Supreme Court of Florida, Harry Lee Anstead, Gerald Kogan & Thomas D. Hall, 29 Nova L. Rev. 431 (2005)...... 6, 7

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STATEMENT OF THE CASE

This case stems from the denial of a motion to dismiss an action for declaratory judgment. In the underlying action, Plaintiffs sought a declaration against Mike Haridopolos, in his official capacity as the Florida Senate President, appellant, and respondents, Dean Cannon, in his official capacity as the Speaker of the Florida House of Representatives, and Dr. Eric J. Smith, in his official capacity as Florida Commissioner of Education; and the Florida State Board of Education, that the State of Florida failed to make adequate provision for a high quality system of free public schools that allows students to obtain a high quality education, as required by Article IX, § 1 of the Florida Constitution.

All defendants moved to dismiss the complaint on the bases that it alleges a non-justiciable political question over which the court lacks subject matter jurisdiction, that the complaint fails to state a cause of action, and that the Florida

Senate President and the Speaker of the House are immune from suit. The Circuit

Court denied the motion to dismiss, and the defendants filed a Petition for Writ of

Prohibition with the First District Court of Appeal on the basis that the trial court lacked subject matter jurisdiction to consider a case that involved a non-justiciable political question.

The First District Court of Appeal, sitting en banc, issued an eight to seven decision denying the petition; however, the eight members of the court who 1 supported the decision to deny the petition were unable to issue a majority opinion as to why the petition should be denied. Instead, the court issued three opinions: an opinion signed on by seven judges that supported the denial of the petition for writ, a specially concurring opinion signed by a single judge that expressly concurred only in the denial of the petition, and a dissenting opinion signed by seven judges. Fourteen of fifteen judges of the en banc court agreed to certify the following question of great public importance under Florida Constitution, Article

V, § 3(b)(4):

DOES ARTICLE IX, SECTION 1(A), FLORIDA CONSTITUTION, SET FORTH JUDICIALLY ASCERTAINABLE STANDARDS THAT CAN BE USED TO DETERMINE THE ADEQUACY, EFFICIENCY, SAFETY, SECURITY, AND HIGH QUALITY OF PUBLIC EDUCATION ON A STATEWIDE BASIS, SO AS TO PERMIT A COURT TO DECIDE CLAIMS FOR DECLARATORY JUDGMENT (AND SUPPLEMENTAL RELIEF) ALLEGING NONCOMPLIANCE WITH ARTICLE IX, SECTION 1(A) OF THE FLORIDA CONSTITUTION? Defendants below subsequently filed a motion seeking rehearing or clarification of that opinion, arguing that the decision of the District Court of

Appeal did not pass upon the certified question. The District Court of Appeal denied rehearing; however, in an opinion concurring in the denial of rehearing and clarification, four judges of the District Court of Appeal acknowledged that the majority decision did not pass upon the certified question but suggested their decision expressly construed a provision of the Florida Constitution.

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SUMMARY OF THE ARGUMENT

The majority decision of the First District Court of Appeal only narrowly denied the writ of prohibition. Because the decision of the First District Court of

Appeal neither expressly construed a provision of the Florida Constitution nor expressly passed upon the certified question, Petitioner‟s contentions that this

Court has jurisdiction under Florida Constitution, Article V, § 3(b)(3) or 3(b)(4), respectively, are without merit. Moreover, this Court should reject Petitioner‟s plea that it exercise its discretionary jurisdiction because the Court will have an opportunity to review the constitutional issues presented to the First District Court of Appeal on direct appeal with a full record.

ARGUMENT I. REVIEW UNDER FLORIDA CONSTITUTION, ARTICLE V, SECTION 3(b)(3) IS INAPPROPRIATE BECAUSE THE DECISION OF THE FIRST DISTRICT COURT OF APPEAL ONLY NARROWLY DENIED THE WRIT OF PROHIBITION AND DID NOT CONSTRUE ANY PROVISION OF THE FLORIDA CONSTITUTION.

The majority decision of the First District Court of Appeal only narrowly denied the writ of prohibition and did not expressly construe a provision of the

Florida Constitution, and therefore does not support a claim for jurisdiction under the Florida Constitution, Article V, § 3(b)(3). Petitioner first contends this Court has jurisdiction to hear this claim, arguing that the First District Court of Appeal

3 expressly construed a provision of the Constitution; however, the decision of the court did not reach such construction.

As a preface, this Court is a court of “extremely limited jurisdiction.” State v. Barnum, 921 So.2d 513, 524, fn. 8 (Fla. 2005); see also Bunkley v. State, 882

So.2d 890, 904 (Fla. 2004)(citing Operation and Jurisdiction of the Florida

Supreme Court, Justice Gerald Kogan & Robert Craig Waters, 18 Nova L.Rev.

1151, 1174-75 (1994)). As a feature of that limitation, Article V, § 3(b)(3) provides the Court “[m]ay review any decision of a district court of appeal . . . that expressly construes a provision of the state or federal constitution . . . .”

(Emphasis added); see also Fla. R. App. P. 9.030(a)(2)(A)(ii). Only decisions that reflect the decision of a majority of a District Court of Appeal can provide a basis for review under § 3(b)(3). See Byrd v. State, 880 So.2d 616 (Fla. 2004); see also

Jenkins v. State, 385 So.2d 1356, 1359 (Fla. 1980) (distinguishing between the decision of a district court of appeal and its various “opinions or reasons,” quoting

Gibson v. Maloney, 231 So.2d 823, 824 (Fla.1970)). Where opinions such as plurality opinions and concurring opinions do not reflect the majority of the court, they do not state the decision of the court. See id.

A review of the opinion below demonstrates that the majority decision of the

District Court of Appeal only denied the writ of prohibition and did not construe any constitutional provisions. The matter below was reviewed by the fifteen 4 judges of the First District Court of Appeal en banc. Boiled down to its essence, seven judges in a plurality opinion denied the writ of prohibition, reasoning as follows: the circuit courts are courts of general jurisdiction; prohibition applies only in „emergencies‟ and when a lower court usurps jurisdiction; the standards set forth in the Florida Constitution under Article IX, § 1 related to adequate provision for a system of free public schools are discernable; and the Circuit Court may

“pass on the constitutionality of any statutory enactment affecting the provision of

„a uniform, efficient, safe, secure and high quality system of free public schools.‟”

Op. at 9. The plurality opinion went on to observe that any claim of judicial intrusion premised on potential overreaching remedies was premature, expressly stating uncertainty as to the availability of relief beyond declaratory relief and providing no opinion on that issue. Op. at 15. In contrast to the plurality opinion, the special concurrence authored by a single judge reasoned that even though the provisions of Article IX, § 1 were neither self executing nor judicially ascertainable, the Circuit Court could still construct a remedy where “the

Legislature has failed to address the public‟s will in a reasonable period of time.”

Op. at 20. He therefore expressly concurred in denying the writ, but given his reasoning, it is clear that he did not otherwise join the plurality‟s rationale. See

Op. at 20-21.

Petitioner cites State v. Wellington Precious Metals, Inc., 510 So.2d 902 5

(Fla. 1987) for the proposition that review is permissible; however, the case is inapposite. While the District Court of Appeal opinion which gave rise to certiorari review in Wellington consisted of three separate opinions from three separate judges – an opinion, a specially concurring, and a dissenting opinion – the specially concurring opinion expressly adopted the position of the main opinion.

See State v. Wellington Precious Metals, Inc., 487 So.2d 326, 328 (Fla. 3rd DCA

1986)(“Although I read the opinions of Judges Ferguson and Jorgenson as advocating functionally equivalent solutions to the same problem, I cast my lot with Judge Ferguson . . . .”) Thus, the District Court of Appeal in Wellington

Precious Metals issued a clear majority decision. That is not the case here.

A specially concurring opinion that expresses concern or adopts a different reasoning may limit the decision expressed in a plurality opinion. As has been observed in the context of Florida Supreme Court opinions:

[a] specially concurring opinion can constitute the fourth vote needed to create a binding decision under the state constitution and can be sufficient to establish an opinion as binding precedent. However, in this last instance, the true nature of the precedent would not necessarily consist of the plurality opinion, the special concurrence, or even both taken together. Rather, the Court‟s opinion for purposes of precedent would consist of those principles on which at least four members of the Court have agreed. In other words, it is possible for a special concurrence to be sufficiently narrow as to deprive a plurality opinion of precedential value with respect to matters about which the concurring Justice has expressed disagreement or reservations.

Operation and Jurisdiction of the Supreme Court of Florida, Harry Lee Anstead, 6

Gerald Kogan & Thomas D. Hall, 29 Nova L. Rev. 431, 460 (2005)(footnotes omitted and emphasis added). In the present case, the specially concurring opinion contradicted the plurality‟s construction of Article IX, § 1, and only concurred in the denial of the petition for writ of prohibition.

The plurality and specially concurring opinions both construe Article IX, §

1; however, the constructions adopted in each opinion are diametrically opposed and mutually exclusive. The plurality opinion concluded that Article IX, § 1 provides judicially ascertainable standards, whereas the specially concurring opinion determined that the language of that section fails to “provide measurable goals by which the court could judge legislative performance and enforce the provision in any particular manner.” Op. at 18. When plurality and concurring opinions do not agree with one another on an issue, they cannot comprise the decision of the court. See Jenkins, 385 So.2d at 1359 (Fla. 1980) (explaining that

“the language and expressions found in a dissenting or concurring opinion cannot support jurisdiction under § 3(b)(3) because they are not the decision of the district court of appeal”).

The only point upon which the plurality opinion and the specially concurring opinion agreed was that the writ should be denied. As such, the decision of the

District Court of Appeal did not construe a provision of the Florida Constitution, and review premised upon the District Court of Appeal‟s construction of the 7

Florida Constitution is not an appropriate avenue for review of the decision here.

II. REVIEW UNDER FLORIDA CONSTITUTION, ARTICLE V, SECTION 3(b)(4) IS INAPPROPRIATE BECAUSE THERE IS NO CLEAR MAJORITY DECISION OF THE DISTRICT COURT OF APPEAL PASSING UPON THE CERTIFIED QUESTION.

The decision of the majority of the District Court of Appeal did not pass upon the question certified to the Court. This Court has identified a three prong test for determining whether jurisdiction may be exercised on a certified question: 1. the district court of appeal must issue a majority decision; 2. the majority decision must pass upon the certified question; and 3. a majority of the judges participating in the case must certify the question. See Floridians For A Level Playing Field v.

Floridians Against Expanded Gambling, 967 So.2d 832, 833 (Fla. 2007). In the instant case, 14 of the 15 judges participating in the case certified the question as being of great public importance, but the decision of the District Court of Appeal did not decide the question certified to the Court.

As demonstrated above, the majority decision of the District Court of Appeal merely denied the writ of prohibition and did not answer the certified question. The seven-judge plurality opinion may have passed on whether Article IX, § 1(a) has judicially ascertainable standards and whether declaratory relief may be granted, but, the plurality opinion expressly did not decide whether other supplemental relief could be granted. See Op. at 15 (“[W]e are uncertain as to whether – and do

8 not decide that – the trial court has any ability to grant relief beyond [declaratory relief].” The deciding vote of the lone special concurrence concluded the standards of Article IX, § 1(a) “did not provide measurable goals by which a court could judge legislative performance and enforce the provision in any particular manner” and only concurred in the decision to deny the writ. See Op. at 18-21. Only the special concurrence opined that the court had any authority to address

“supplemental relief.”

The divided District Court of Appeal plainly did not decide the question that was certified to this Court. Unlike Finkelstein v. Dept. of Trans., 656 So.2d 921

(Fla. 1995), cited by Petitioner, the District Court of Appeal in the present case has not issued a clear majority opinion apart from the decision to deny the writ – an issue not even presented in the certified question. See Jenkins, 385 So.2d at 1359

(Fla. 1980). In the absence of a “clear majority decision,” this Court lacks jurisdiction. See generally Floridians for a Level Playing Field v. Floridians

Against Expanded Gambling, 967 So.2d 832, 833 (Fla. 2007) (noting that the

Court does not have discretionary jurisdiction “where a district court is unable to reach a clear majority decision on an issue and elects to certify a question without resolving the merits”); Boler v. State, 678 So.2d 319, 320 n. 2 (Fla. 1996) (stating that if a District Court of Appeal is evenly split on a legal issue and specifically withholds a decision on the merits, there is no “decision” on which to base certified 9 conflict review under § 3(b)(4)). Therefore, this Court is without jurisdiction, because the First District Court of Appeal did not issue a clear majority opinion on the merits of the certified question posed to this Court.

III. THIS COURT WILL HAVE AN OPPORTUNITY TO REVIEW THE CONSTITUTIONAL ISSUES PRESENTED TO THE FIRST DISTRICT COURT OF APPEAL ON DIRECT APPEAL. The Court‟s lack of jurisdiction at this point does not limit this Court‟s ultimate role and responsibility in this case. In the course of the proceedings below, the Circuit Court might, after hearing testimony and evidence, determine that the Legislature has met its obligations to adequately provide for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education, or it might reach a conclusion to the contrary, or anywhere in between. The Circuit Court could also determine upon further review that the case does, in fact, present a non-justiciable political question as the state parties contend. In any event, the decision of the Circuit

Court will undoubtedly lead to an appeal of the foundational constitutional questions that were presented to the First District Court of Appeal. And this Court would receive the case on a more fully developed record including a clearer decision of the District Court of Appeal or an otherwise proper certification.

At present, the District Court of Appeal is split. Seven judges believe a constitutional provision is self-executing and judicially enforceable, seven judges

10 believe it is not self-executing and not subject to direct judicial enforcement, and the eighth judge – and deciding vote – split on the questions. Although all of the state defendants agree that the underlying case presents a non-justiciable political question, only one state party desires this Court to address the issue immediately given the fractured opinions in the District Court of Appeal. The issue will undoubtedly be resolved by this Court eventually, but at present, the case is not ripe for review because of the District Court of Appeal‟s failure to reach a majority decision. Accordingly, this Court lacks jurisdiction, and the Senate‟s petition should be dismissed.

CONCLUSION

For the reasons stated, this court should not accept jurisdiction over this matter.

Respectfully Submitted,

Attorney

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the foregoing document was and hand delivered to the Court, electronically mailed to [email protected], and served by U.S. mail this 16th day of April, 2012, to:

Neil Chonin Jon L. Mills Jodi Siegel Boies, Schiller & Flexner Southern Legal Counsel, Inc. 100 SE Second Street 1229 NW 12th Ave. Miami, FL 33131 Gainesville, FL 32601

Timothy McLendon Deborah Cupples P O Box 2099 2841 SE 13th Street, G-327 Gainesville, FL 32602 Gainesville, FL 32608

Leah Marino Deputy General Counsel The Florida Senate-Office of the President Suite 409, The Capitol 404 South Monroe Street Tallahassee, FL 32399-1100

Attorney

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CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the font requirements of Fla. R.

App. P. 9.210(a) and is submitted in Times New Roman 14 point font.

Attorney

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