Electronically Filed 05/13/2013 05:07:19 PM ET

RECEIVED, 5/13/2013 17:08:47, Thomas D. Hall, Clerk, Supreme Court

IN THE SUPREME COURT OF

CASE NO. SC13-682

LOWER TRIBUNAL NOS. 4D11-2799 and 07-29414 (02)

CITY OF PEMBROKE PINES,

Petitioner,

vs.

THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA,

Respondent.

RESPONDENT’S BRIEF ON JURISDICTION Anthony J. Carriuolo Florida Bar No. 434541 BERGER SINGERMAN LLP 350 East , 10th Floor Fort Lauderdale, Florida 33301 Telephone: (954) 525-9900 Facsimile: (954) 523-2872 [email protected]

Attorneys for Respondent, The School Board of Broward County, Florida

4900057-1

Boca Raton Fort Lauderdale Tallahassee

350 East Las Olas Boulevard, Suite 1000 Fort Lauderdale, Florida 33301 Telephone 954-525-9900 Facsimile 954-523-2872

TABLE OF CONTENTS

Page

RESPONDENT’S BRIEF ON JURISDICTION ...... 1 PROCEDURAL BACKGROUND ...... 2 NO CLASS-WIDE EFFECT OF APPELLATE COURT’S DECISION ...... 5 NO CERTIFICATION OF ‘GREAT PUBLIC IMPORTANCE’ ...... 6 NO CONFLICT JURISDICTION ...... 7 CONCLUSION ...... 9 CERTIFICATE OF COMPLIANCE ...... 10 CERTIFICATE OF SERVICE ...... 10

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Boca Raton Fort Lauderdale Miami Tallahassee

350 East Las Olas Boulevard, Suite 1000 Fort Lauderdale, Florida 33301 Telephone 954-525-9900 Facsimile 954-523-2872

TABLE OF AUTHORITIES

Page CASES Florida Insurance Guaranty Association, Inc. v. Devon Neighborhood Association, Inc. , 67 So. 3d 187 (Fla. 2011) ...... 8 Floridians for a Level Playing Field v. Floridians Against Expanded Gambling, 967 So. 2d 832 (Fla. 2007) ...... 7 Rippy v. Shepard, 80 So. 3d 305 (Fla. 2012) ...... 7 School Board of Palm Beach County v. Survivors Charter Schools, Inc., 3 So.3d 1220 (Fla. 2009) ...... 5 School Board of Pinellas County v. District Court of Appeal, 467 So. 2d 985 (Fla. 1985) ...... 6 Spradley v. State, 293 So. 2d 697 (Fla. 1974) ...... 6 Wallace v. Dean , 3 So. 3d 1035 (Fla. 2009) ...... 8 STATUTES Florida Statutes, Section 1011.71(2) ...... 2, 5 Florida Statutes, Section 1013.62 ...... 2 Florida Statutes, Section 1013.64 ...... 2 RULES Florida Rules of Appellate Procedure, Rule 9.030(a)(2)(A)(iv)...... 7 Florida Rules of Appellate Procedure, Rule 9.030(a)(2)(A)(v) ...... 7 CONSTITUTIONAL PROVISIONS Florida Constitution, Article V, Section 3(b)(3) ...... 1, 7

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Boca Raton Fort Lauderdale Miami Tallahassee

350 East Las Olas Boulevard, Suite 1000 Fort Lauderdale, Florida 33301 Telephone 954-525-9900 Facsimile 954-523-2872

Respondent, The School Board of Broward County, Florida (the “School

Board”), urges the Court to decline discretionary review jurisdiction 1 as has been requested by Petitioner, City of Pembroke Pines (the “City”). The City through its notice to invoke discretionary jurisdiction sought review of the Fourth District

Court of Appeal’s decision, on the grounds that (1) the district court passed upon an issue of great public importance, pursuant to Rule 9.030(a)(2)(A)(v), and (2) because the appellate court’s decision expressly affects a class of constitutional or state officers [pursuant to Rule 9.030(a)(2)(A)(iii)].

The precise matters underlying the Fourth District Court of Appeals’ affirmance do not warrant discretionary review; the error alleged by the City on appeal concerned facts and circumstances specific to the School Board, and the district court of appeal’s decision does not affect a larger ‘class’ of school district boards throughout the State. The decision instead rested exclusively on Broward- specific matters argued by the City. The decision below also does not support discretionary jurisdiction under the “great public importance” prong, because the district court of appeal did not so certify.

The City through its jurisdictional brief improperly seeks to augment the basis of its jurisdictional notice, by including in its brief a further claim that the

1 Art. V, § 3(b)(3), Fla. Const . 4900057-1 -1-

Boca Raton Fort Lauderdale Miami Tallahassee

350 East Las Olas Boulevard, Suite 1000 Fort Lauderdale, Florida 33301 Telephone 954-525-9900 Facsimile 954-523-2872

district court of appeal’s opinion creates “express conflict” jurisdiction under Rule

9.030(a)(2)(A)(iv). The City is barred from pursuing review jurisdiction on this late-filed ground; in any event, conflict review is not warranted here.

PROCEDURAL BACKGROUND Even though the City’s pleadings claimed the School Board had violated

Florida Statutes Section 1011.71(2), through which the Legislature had empowered a school district board to levy and use ad valorem taxes in its discretion, the City at the trial level shifted its arguments and asked the court to compel the School Board to include the City in that district’s capital expenditure budgeting process. The capital facilities budgeting process applicable to district school boards is circumscribed by a statutory framework 2 entirely separate from the statute authorizing school district boards to levy taxes for their capital funding.

The City embarked on this changed tack because of the flaw in asking a court so conspicuously to tell the School Board how to use its discretionary ad valorem tax revenues, especially in view of the separate capital funding statute benefitting charter schools exclusively.3

The City’s uphill battle was made more difficult because the Legislature had previously rejected proposed changes that had sought to require school district

2 § 1013.64, Fla. Stat. 3 § 1013.62, Fla. Stat. 4900057-1 -2-

Boca Raton Fort Lauderdale Miami Tallahassee

350 East Las Olas Boulevard, Suite 1000 Fort Lauderdale, Florida 33301 Telephone 954-525-9900 Facsimile 954-523-2872

boards to share their ad valorem tax revenues with charter schools. The City pendent lite also unsuccessfully pursued a Chapter 120 attack on the School Board, arguing that the School Board’s failure to include the City in the district’s capital budgeting process constituted an invalid “rule.”

So the City sought to bend its claims by arguing (outside its pleadings) that the City should be forced into the School Board’s capital facilities planning process (which ultimately is directed to the State’s Department of Education), under the guise that failure to do so somehow violated the discretion to share ad valorem revenues granted under the separate taxing statute.

After losing its legislative and administrative battles, the City waged a last- minute smear campaign to thwart the School Board’s entitlement to summary judgment. The City littered the record below with a statewide grand jury report

(issued in early 2011) that discussed past construction cost management failures affecting Broward County. The grand jury report was not related to charter schools. The report also was not related to the School Board’s sharing of ad valorem tax revenues with any charter schools operating in Broward County.

The City misstated the focus of the report, and sought to stretch the report’s negative assertions about the School Board’s past construction management practices, to impugn the School Board for failing to share its ad valorem tax

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Boca Raton Fort Lauderdale Miami Tallahassee

350 East Las Olas Boulevard, Suite 1000 Fort Lauderdale, Florida 33301 Telephone 954-525-9900 Facsimile 954-523-2872

revenues with the City. Regardless of whether any ill statements set forth in the grand jury report hold factual merit, the report has nothing to do with the School

Board’s interaction with the City’s charter schools. The City’s bold assertion in its jurisdictional brief, that the grand jury found fraud in the School Board’s allocation of ad valorem tax revenues 4, is patently false. The grand jury report addressed matters such as decisions to build certain schools (including disparities between eastern and western Broward County needs), opening schools under temporary certificates of occupancy (TCOs), district employee relations and discipline, and interaction between construction inspectors and construction vendors. But none of the grand jury’s findings or recommendations touched upon the legislative issues raised by the City below. The City’s effort to smear the

Broward school system, by dumping the off-point grand jury report into the record, was appropriately rejected by the lower appellate court.

The City went so far as to assert, even before this Court in its current jurisdiction brief, that the School Board committed a fraud upon the Court by not signaling what the statewide grand jury ultimately reported. The City’s commentaries are reckless 5, but in the end add no value to the precise inquiry

4 Jurisdiction Brief, at p.3. 5 The School Board defers to this Court as to the appropriate relief to mete out to discourage such reckless statements by the City. 4900057-1 -4-

Boca Raton Fort Lauderdale Miami Tallahassee

350 East Las Olas Boulevard, Suite 1000 Fort Lauderdale, Florida 33301 Telephone 954-525-9900 Facsimile 954-523-2872

presented concerning the School Board’s discretion granted under Section

1011.71(2).

NO CLASS-WIDE EFFECT OF APPELLATE COURT’S DECISION The City’s reliance on the grand jury report concerning construction and utilization issues affecting Broward’s schools, highlights the Broward-specific nature of the claims it brought and the Broward-specific ‘evidence’ it sought to inject at the eleventh hour to avoid summary judgment. Indeed, as the Fourth

District Court of Appeal aptly noted in its opinion, the City on appeal argued unsuccessfully that the 2011 grand jury report (concerning Broward’s past management of construction projects), had any bearing on Broward’s allocation of its discretionary ad valorem capital tax revenues .

The lower appellate court’s decision does not address matters affecting a state-wide class of constitutional or state officers. Instead the decision below rested on the disconnect between the subject matter of the Broward-specific grand jury report, and the Broward-specific complaints lodged by the City before the court

(and in the administrative forum) relating to how this school board had exercised its discretion thus far under the discretionary ad valorem capital tax statute.

This Court’s decision in School Board of Palm Beach County v. Survivors

Charter Schools, Inc., 3 So.3d 1220 (Fla. 2009), is not supportive of jurisdiction

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Boca Raton Fort Lauderdale Miami Tallahassee

350 East Las Olas Boulevard, Suite 1000 Fort Lauderdale, Florida 33301 Telephone 954-525-9900 Facsimile 954-523-2872

here. In Survivors , this Court accepted jurisdiction because the underlying district court decision addressed a legal issue with broad application to each school district board throughout the state; namely, whether a charter school-related statute, or alternatively the Administrative Procedures Act, governed the procedure by which a school district board could terminate a charter school.

The Fourth District Court of Appeals’ decision below is not subject to widespread application across all school district boards; the grand jury report on which the City’s appellate arguments rested, addressed Broward issues only, and the decision below affected only the School Board. See Spradley v. State, 293 So.

2d 697, 701-02 (Fla. 1974) (certiorari review denied where ruling did not affect class of officers in any general way unrelated to the specific facts of the case). See also School Board of Pinellas County v. District Court of Appeal, 467 So. 2d 985,

986 (Fla. 1985).

Because of the limited focus and resulting effect of the Fourth District Court of Appeals’ decision, no class-wide decision was rendered and discretionary review by this Court is not warranted.

NO CERTIFICATION OF ‘GREAT PUBLIC IMPORTANCE’ Although the City in its notice to invoke discretionary jurisdiction cited “an issue of great public importance” as the second prong of this Court’s discretionary

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Boca Raton Fort Lauderdale Miami Tallahassee

350 East Las Olas Boulevard, Suite 1000 Fort Lauderdale, Florida 33301 Telephone 954-525-9900 Facsimile 954-523-2872

jurisdiction 6, the City abandoned this ground by omission from its jurisdictional brief. In any event, the failure of the Fourth District Court of Appeal to certify any question as one of great public importance, would undercut discretionary jurisdiction here. See Floridians for a Level Playing Field v. Floridians Against

Expanded Gambling, 967 So. 2d 832, 833 (Fla. 2007).

NO CONFLICT JURISDICTION The City did not claim any “conflict” 7 when it filed its notice to invoke this

Court’s jurisdiction. The notion of “conflict jurisdiction” was first raised in the

City’s jurisdictional brief. Because the City did not timely invoke jurisdiction on a

“conflict” ground, this Court should disregard those portions of the City’s brief that purport to address the conflict question.

In the event the Court nonetheless reviews this matter for ‘conflict’, the

Fourth District Court of Appeals’ decision under scrutiny does not present any conflict among sister courts, or with any precedent of this Court, that would justify discretionary review. Compare, e.g., Rippy v. Shepard, 80 So. 3d 305, 306 (Fla.

2012) (finding that district court opinion conflicted with this Court’s precedent);

Florida Insurance Guaranty Association, Inc. v. Devon Neighborhood Association,

6 Art. V, § 3(b)(3), Fla. Const .; Fla. R.App. P. 9.030(a)(2)(A)(v). 7 Art. V, § 3(b)(3), Fla. Const .; Fla. R.App. P. 9.030(a)(2)(A)(iv). 4900057-1 -7-

Boca Raton Fort Lauderdale Miami Tallahassee

350 East Las Olas Boulevard, Suite 1000 Fort Lauderdale, Florida 33301 Telephone 954-525-9900 Facsimile 954-523-2872

Inc. , 67 So. 3d 187, 189 (Fla. 2011); Wallace v. Dean , 3 So. 3d 1035, 1038-40

(Fla. 2009).

The lower appellate court rested its decision on the Broward-specific matter the City tendered as grounds to thwart the School Board’s request for summary final judgment. The appellate court’s decision was abbreviated because the City’s assignment of error on appeal was limited. The appellate court found that the grand jury report was not appropriate ‘evidence’ offered in opposition to the School

Board’s summary judgment motion; the court also determined that the City’s failure to request a continuance of that summary judgment hearing warranted affirmance, as the trial court under those circumstances did not abuse its discretion in entering judgment in favor of the School Board.

These limited circumstances certainly do not present any “conflict” on any issue warranting discretionary review.

The City and other charter schools had successfully obtained legislative action to authorize school district boards in their discretion to share ad valorem capital tax revenues with local charter schools. However, the City and other charter schools were unsuccessful in their later attempts to mandate capital tax revenue sharing through further legislation. The appellate court’s decision was

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Boca Raton Fort Lauderdale Miami Tallahassee

350 East Las Olas Boulevard, Suite 1000 Fort Lauderdale, Florida 33301 Telephone 954-525-9900 Facsimile 954-523-2872

appropriately founded on judicial deference to the legislative process, and no conflict on that ground has been demonstrated.

CONCLUSION Respondent, The School Board of Broward County, Florida, respectfully requests that this Court decline discretionary review jurisdiction in this case.

Respectfully submitted,

_/s/ Anthony J. Carriuolo______Anthony J. Carriuolo Florida Bar No. 434541 BERGER SINGERMAN LLP 350 East Las Olas Boulevard, 10th Floor Fort Lauderdale, Florida 33301 Telephone: (954) 525-9900 Facsimile: (954) 523-2872 [email protected]

Attorney for The School Board of Broward County, Florida

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Boca Raton Fort Lauderdale Miami Tallahassee

350 East Las Olas Boulevard, Suite 1000 Fort Lauderdale, Florida 33301 Telephone 954-525-9900 Facsimile 954-523-2872

CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the foregoing Brief is being submitted in Times

New Roman 14-point, and otherwise complies with the font requirements of

Florida Rule of Appellate Procedure 9.210.

By: __/s/ Anthony J. Carriuolo______Anthony J. Carriuolo Fla. Bar No. 434541

CERTIFICATE OF SERVICE I hereby certify that on this 13th day of May, 2013, a true and correct copy of the foregoing was sent via electronic mail and U.S. mail, postage prepaid, to:

Edward J. Pozzuoli, Esq., [email protected], Stephanie D. Alexander, Esq., [email protected], Tripp Scott, P.A., 110 S.E. Sixth Street, 15th Floor, Fort

Lauderdale, FL 33301; and Samuel S. Goren, Esq., [email protected], Goren

Cherof Doody and Ezrol P. A., 3099 E Commercial Boulevard, Suite 200, Fort

Lauderdale, Florida 33308.

By: __/s/ Anthony J. Carriuolo______Anthony J. Carriuolo Fla. Bar No. 434541

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Boca Raton Fort Lauderdale Miami Tallahassee

350 East Las Olas Boulevard, Suite 1000 Fort Lauderdale, Florida 33301 Telephone 954-525-9900 Facsimile 954-523-2872