SC06-2505 – Floridians For A Level Playing Field v. Floridians Against Expanded Gambling, Et Al.

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State: Florida

Court: Supreme Court

Docket No: sc06-2505

Case Date: 09/27/2007

Plaintiff: SC06-2505 – Floridians For A Level Playing Field

Defendant: Floridians Against Expanded Gambling, Et Al.

Preview:Supreme Court of Florida
No. SC06-2505
FLORIDIANS FOR A LEVEL PLAYING FIELD,
Petitioner,
vs.
FLORIDIANS AGAINST EXPANDED GAMBLING, et al.,
Respondents.
[September 27, 2007]
PARIENTE, J.
We have for review the decision in Floridians Against Expanded Gambling
v. Floridians for a Level Playing Field, 945 So. 2d 553 (Fla. 1st DCA 2006), in
which the First District Court of Appeal certified a question to be of great public
importance.  Initially, the Court accepted review pursuant to article V, section
3(b)(4) of the Florida Constitution, which gives us discretionary jurisdiction to
review “any decision of a district court of appeal that passes upon a question
certified by it to be of great public importance.”  Upon further consideration, we
conclude that jurisdiction was improvidently granted and therefore discharge this
case for the two reasons explained below.

In order to have discretionary jurisdiction based on a certified question, there
are essentially three prerequisites that must be met.   First, it is essential that the
district court of appeal pass upon the question certified by it to be of great public
importance.  We have previously discharged jurisdiction where the district court of
appeal has not in fact passed upon the question certified.1   Second, there must be a
district court “decision” to review.  See art. V, § 3(b)(4), Fla. Const.  For instance,
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, we are without jurisdiction
to answer such a question under article V, section 3(b)(4) of the Florida
Constitution.  See Boler v. State, 678 So. 2d 319, 320 n.2 (Fla. 1996) (stating that
if a district court is evenly split on a legal issue and specifically withholds a
decision on the merits, there is no “decision” on which to base certified conflict
review under article V, section 3(b)(4)).  Third, and most important for this case,
the question must be in fact “certified” by a majority decision of the district court.
For the same reasons that we are without jurisdiction under article V, section
3(b)(4) if there is no majority decision on the merits, we are equally without
jurisdiction if there is no clear majority on the decision to certify.  Accordingly, we
conclude that under article V, section 3(b)(4) of the Florida Constitution, it is
1.   See Pirelli Armstrong Tire Corp. v. Jensen, 777 So. 2d 973 (Fla. 2001);
Salgat v. State, 652 So. 2d 815 (Fla. 1995); Gee v. Seidman & Seidman, 653 So.
2d 384 (Fla. 1995).
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required that a majority of those judges participating in the case concur in the
decision to certify.
In this case, only six of the twelve judges that participated in the en banc
decision concurred in certification.2   Five judges, although concurring in the
majority decision, disagreed with the decision to certify.  Importantly, Judge
Benton did not fully concur with the majority decision; rather, Judge Benton only
concurred in the judgment.  This vote indicates Judge Benton’s agreement only
with the judgment of the majority; that is, its decision to reverse the summary
judgment and remand.  See Home Dev. Co. of St. Petersburg v. Bursani, 168 So.
2d 131, 134 (Fla. 1964) (distinguishing between the judgment, which is essentially
the ultimate decision in the case, and the opinion, which sets “forth the theory and
reasoning upon which a decision” is reached); see also Black’s Law Dictionary
858 (8th ed. 2004) (defining judgment as “[a] court’s final determination of the
rights and obligations of the parties in a case”).  In this sense, “concurring in the
judgment” is akin to “concurring in result only,” which “expresses agreement with
2.   Three judges, Judges Browning, Webster and Lewis, concurred in the
judgment and the certification; Judge Benton concurred in the judgment only; three
judges, Judges Kahn, Ervin, and Wolf, dissented as to the reasoning and result
reached by the majority but concurred in the certification; and five judges, Judges
Padovano, Barfield, Davis, Polston, and Hawkes, joined “the decision and opinion
on this issue presented” but dissented from the court’s decision to certify.  Three
judges, Judges Allen, Van Nortwick and Thomas, did not participate in the en banc
panel.
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the ultimate decision but not the opinion.”  Rowe v. Winn-Dixie Stores, Inc., 714
So. 2d 1180, 1181 (Fla. 1st DCA 1998), disapproved on other grounds by Owens
v. Publix Supermarkets, Inc., 802 So. 2d 315 (Fla. 2001); accord Harry Lee
Anstead, Gerald Kogan, Thomas D. Hall & Robert Craig Waters, The Operation
and Jurisdiction of the Supreme Court of Florida, 29 Nova L. Rev. 431, 460 (2005)
(“A concurring in result only opinion indicates agreement only with the decision,
that is, the official outcome and result reached, but a refusal to join in the
majority’s opinion and its reasoning.”).
Conversely, certification is separate from the judgment of the court and its
reasoning for the judgment as expressed in its opinion.  This is evident by
comparing the definition of judgment, i.e., “[a] court’s final determination of the
rights and obligations of the parties in a case,” with the definition of a certified
question, i.e., “[a] point of law on which a[n] . . . appellate court seeks guidance”
from a higher court by the procedure of certification.   Black’s Law Dictionary at
858, 241 (emphasis supplied).  Moreover, there are separate and specific rules that
both permit a party to file a motion seeking certification and authorize the district
court to certify the question.   Compare Fla. R. App. P. 9.030(a)(2)(A)(v) (granting
discretionary jurisdiction to the Court if a district court decision certifies a
question), with Fla. R. App. P. 9.330(a) (authorizing a party to a file motion for
certification to the district court); cf. Floridians, 945 So. 2d at 562 (reversing
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summary judgment and remanding for a trial, and then certifying two questions to
the Court, specifically in accordance with article V, section 3(b)(4) of the Florida
Constitution and Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v)).  We
conclude that by “concurring in the judgment” and failing to indicate his
agreement with the decision to certify, Judge Benton’s vote cannot be counted as
agreeing with the certification.  Cf. Hadden v. State, 670 So. 2d 77, 83 (Fla. 1st
DCA 1996) (Benton, J., concurs in result and in certification) (indicating Judge
Benton’s agreement with the result and the decision to certify, but disagreement
with the reasoning of the majority opinion).
Even assuming that we had jurisdiction based on either a certification of a
question of great public importance or express and direct conflict under article V,
section 3(b)(3) of the Florida Constitution, we would nevertheless decline to
exercise our jurisdiction.  After having reviewed the opinions from this Court that
deal with post-election challenges based on various issues regarding the election
process, we have determined that it is preferable that the facts of this case be
developed regarding the allegations and pervasiveness of the fraud before we
articulate a rule of law regarding the election cure doctrine in such circumstances.
This is the position advocated by the Secretary of State, Kurt S. Browning, and the
Department of State represented by its General Counsel and the Attorney General.
As stated in its answer brief:
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The long-standing principle that an election cures irregularities in the
process and thereby promotes finality and administrative efficiency is
a weighty one; similarly, the ability of citizens to amend the state
constitution through the initiative process without fraud is extremely
important. This Court should avoid making rulings affecting the
application of these principles until the specific allegations of fraud
are adjudicated. A fully-developed record with a proven set of facts
will allow this Court to carefully consider and balance the competing
legal principles; that cannot properly be done based on speculative,
unproven factual allegations.
Answer Brief of Respondent Secretary of State at 6.
We believe that the position of the Attorney General is a sound one and
conclude, as an alternative basis for discharging jurisdiction, that review in this
case is premature.3   Accordingly, we hereby discharge jurisdiction and dismiss this
review proceeding.
It is so ordered.
LEWIS, C.J., and WELLS, ANSTEAD, QUINCE, CANTERO, and BELL, JJ.,
concur.
NO MOTION FOR REHEARING WILL BE ALLOWED.
Application for Review of the Decision of the District Court of Appeal - Certified
Great Public Importance
First District - Case No. 1D05-575
3.   Although we agree that review in this case would be premature, we
disagree with Judge Padovano to the extent he reasons that certified question
jurisdiction was only “meant to apply to a final decision by a district court of
appeal.”  Floridians, 945 So. 2d at 568 (Padovano, J., concurring in part and
dissenting in part).
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(Leon County)
Bruce S. Rogow and Cynthia E. Gunther of Bruce S. Rogow, P.A., Fort
Lauderdale, Florida, Wilbur E. Brewton and Tana D. Storey of Roetzel and
Andress, LPA, Tallahassee, Florida, John M. Hogan of Holland and Knight, LLP,
Miami, Florida, and Thomas R. Julin and Jamie Z. Isani of Hunton and Williams,
LLP, Miami, Florida,
for Petitioner
John H. Pelzer of Ruden, McClosky, Smith, Schuster and Russell, P.A., Fort
Lauderdale, Florida, Bill McCollum, Attorney General, Scott D. Makar, Solicitor
General and Timothy D. Osterhaus, Deputy Solicitor General, Tallahassee, Florida,
and Lynn C. Hearn, General Counsel, Department of State, Tallahassee, Florida,
for Respondents
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