RESPONDENT S JURISDICTION BRIEF

Transcription

1 IN THE SUPREME COURT OF APPEALS CASE NO. SC Second District Court of Appeal No. 2D CITY OF TAMPA, FLORIDA, Florida Municipal Corporation, Petitioner, vs. MARION S. LEWIS, Respondent On review from the District Court of Appeal, Second District, State of Florida RESPONDENT S JURISDICTION BRIEF Florida Bar No Wenzel, Fenton, Cabassa, P.A N. Florida Avenue, Ste. 300 (813) Telephone (813) Facsimile swenzel@wfclaw.com Attorney for Respondent i

2 TABLE OF CONTENTS Table of Contents Table of Citations ii iii Argument 1 Conclusion 3 Certificate of Service 4 Certificate of Compliance 4 ii

3 TABLE OF CITATIONS Cases Baker v Alderman, 111, 115 (M.D. Fla 1991) aff d 979 F.2d 1537 (11 th Cir. 1992) Sanders v. City of Orlando, 997 So.2d 1089, 1094 (Fla. 2008) 2 Statutes Florida Statutes (5)...2 Florida Statutes (5) (2006)...2 Constitutional Provisions Art. V, Section 3(b)(3) Fla. Const. 1 Other Authorities Fl. R. App. Proc (a)(2)(a)(iv).1 2

4 RESPONDENT S JURISDICTION BRIEF The City of Tampa seeks to invoke the discretionary jurisdiction of the Court conferred on it by Art. V, Section 3(b)(3) of the Florida Constitution. In its first review of the case, the Second District Court of Appeal labeled the City s action taken by the City attorney and Police officials in removing Captain Lewis from his position on the police force as an ouster. On remand the City advocated the position that Captain Lewis was not removed unlawfully because he resigned by executing the Statutory Candidate s Oath, which is required as a part of the qualification process. On appeal, a panel of the Second District Court of Appeal disagreed with the City and held that Captain Lewis did not resign by the act of qualification to run for Mayor of Tampa. This opinion effectively supports the first panel s holding that Captain Lewis was illegally removed from office and exposes the City to Captain Lewis s claim for damages. That claim is pending before the Trial Court. The Court should not exercise jurisdiction over the cause because there is not an express and direct conflict between the decision in the Court below and the decision of another District Court of Appeal or a decision of this Court. The Court s jurisdiction rests solely on such a showing Fl. R. App. Proc (a)(2)(a)(iv). 1

5 The City makes three claims as predicates for the exercise of jurisdiction. Its first argument is that the decision should be reviewed because it fails to give effect to the clear and unambiguous language of (5) Fla. Stat. (2006) in contravention of the Court s holding that the statute s plain and obvious and [sic] must control. The City briefly discusses Sanders v. City of Orlando, 997 So.2d 1089, 1094 (Fla. 2008), which is one of a legion of cases in the Court s jurisprudence about statutory construction. The City s argument is that (5) requests Captain Lewis to do something that he did not do resign. As pointed out below, the City had a remedy challenging his placement on the ballot, which it failed to pursue. If Lewis did not do something that he was required to do, the City should have done that which the statute says it should have done; i.e. challenge his placement on the ballot. The decision under review does not hold that Lewis was not required to resign. If that were the holding, this point by the City would have at least surface validity. The holding below is much simpler he did not resign. There is no conflict and there is no basis for the Court to entertain this appeal. The City s second argument fails as well. It asserts that the decision below conflicts with Baker v Alderman, 111, 115 (M.D. Fla. 1991) aff d 979 F.2d 1537 (11 th Cir. 1992). That is a case by a Federal trial court affirmed by an appellate court. Neither of those decisions can be a basis for jurisdiction because they are not decisions of a Florida District Court of Appeal or this Court. 2

6 The City s argument asserts that there is a conflict between the decision of the Court below and this Court s often repeated rubric that the Legislature is presumed to know the law. However, the City has not pointed to an express and direct conflict and this Court should decline to any specific decision of a state Appellate Court to exercise jurisdiction. The final argument of the City is that the decision below conflicts with the rubric that statutes are to be construed in pari materia. The City does not even make an effort to cite any court decision that is in express and direct conflict, accordingly, this argument fails. CONCLUSION The City does not show an express and direct conflict between the decision below and any specific decision by a State Appellate Court or this Court. There is no jurisdiction to review the decision. /s/ Steven G. Wenzel Florida Bar No Wenzel, Fenton, Cabassa, P.A N. Florida Avenue, Ste. 300 (813) Phone (813) Fax swenzel@wfclaw.com Attorney for Respondent 3

7 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 28 day of July, 2011, a true and correct copy of the foregoing has been furnished by electronic and U.S. mail to: Jerry M. Gerwitz Chief Assistant City Attorney 5 th Floor, City Hall 315 E. Kennedy Blvd. Thomas M. Gonzalez Thompson, Sizemore, Gonzalez & Hearing, P.A. 201 N. Franklin Street, Ste /s/ Steven G. Wenzel CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the foregoing Brief complies with the font requirements of Rule 9.210(a)(2) of the Florid Rules of Procedure. /s/ Steven G. Wenzel 4