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 i 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 ii 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 iii 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. 2 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.