| Date issued: 11/01/2011 | |
| Editor: Betsy Stupski |  |
Clicking the icon following the number of each case cited below will link you directly to the cited opinion. AG Advisory Opinions are accessible from the list of links.
Appellate Alert 2011-16
November 1, 2011
First District Court of Appeal
Graham v. Haridopolis 1D11-384
10/12/11
Challenged statutes limiting the manner in which universities could use tuition funds did not violate the Florida Constitution.
A group of citizens challenged several statutes that placed limitations on the manner in which universities use tuition and fees collected from students. The Plaintiffs argued that the statutes were unconstitutional because they were in conflict with the constitutional provisions (Article IX section 7) which gave the Board of Governors authority to establish and expend tuition and fees. The trial court granted a motion for summary judgment in favor of the Legislature.
The First District affirmed the trial court saying, “The legislative power to raise funds is not limited to the imposition of taxes; it includes the power to impose fees necessary to offset the costs of using state government services. Likewise, the power of appropriation is not limited to certain types of funds; it extends to all funds in the State Treasury from whatever source.” The Court went on to say, “ In light of these principles, the validity of the challenged statutes boils down to whether Amendment 11 [ Article IX section 7] divested the Legislature of its ‘power of the purse’ over state university tuition and fees by vesting that authority in the Board. Like the trial court, we see nothing in the language of Amendment 11 or its history that would suggest that such a fundamental change in the Legislature’s power was intended or effectuated...Article IX, section 7(d) provides that the Board is ‘fully responsible for the management of the whole university system.” But this provision also makes clear that the Board’s management of the university system is “subject to the powers of the legislature to appropriate for the expenditure of funds.’”
1D11-384 1dcacv Bob Graham v The Florida Legislature.pdf
Department of Lottery v. Curcio 1D11-3130
10/12/11
The trial court should have ruled on sovereign immunity defense before ordering discovery.
The Plaintiff in this case brought an action when the Department of Lottery denied her claim of a $500, 000 prize. Her complaint included claims for breach of contract, equitable estoppel, unfair and deceptive trade practices and misleading advertising. The plaintiff moved for discovery and the Department responded with a motion for a protective order. When the trial court granted the motion to compel, the Department petitioned for a writ of certiorari.
The First District found that the trial court should have ruled on the sovereign immunity defense on the breach of contract claim and the equitable estoppel claim before authorizing discovery.
1D11-3130 1dcacv Depart. Of the Lottery v Anna Maria Curico.pdf
Third District Court of Appeal
Incarnacion v. Thomas 3D10-2208
10/1/11
Dismissal of pleadings was too harsh since the Defendant was not in any way responsible for her attorney’s failure to appear at a pre-trial meeting.
Defendant’s counsel failed to appear at a case management conference. The trial court dismissed Defendant’s actions.
The Third District reversed the trial court, saying that there was no evidence that the Defendant was in any manner responsible for her attorney’s non-compliance.
3D10-2208 3dcacv Incarnacion v Thomas Berrouet.doc
United States District Court for the Southern District of Florida
Sullivan v. Scott 11-10047
10/18/11
Florida officials did not violate the Voting Rights Act. Case was dismissed for lack of standing and ripeness.
Plaintiffs sued, claiming that Florida officials had failed to obtain preclearance pursuant to the Voting Rights Act before implementing the changes required in Chapter 2011-41, Laws of Florida. The record showed that the Florida Secretary of State had filed a preclearance petition in all but four sections of Chapter 2011-40. The Secretary of State further reported that he had chosen to seek preclearance for the four remaining section by way of a declaratory action in the United States District Court for the District of Columbia. The Secretary of State also sent out notices to the clerks of court notifying them of impending changes but did not take steps to enforce the changes. After reviewing the Secretary of State’s actions, the Court found that there was no imminent harm to Plaintiffs. The Court said, “These are permissible actions by the State that do not show any intent to enforce the sections that have not been precleared in the counties covered by section 5. The State is allowed to prepare for legislation that has been passed and implemented in non-covered counties.”
11-10047 Sullivan v Scott.pdf
United States District Court for the Middle District of Florida
Z.T. v. State 10-672
10/20/11
The State did not violate the equal protection and due process rights of a dependent adolescent who was placed in a residential treatment facility.
The petitioner was a 15 year old boy whose adoptive parents relinquished him to the State. The State recommended that the petitioner be placed in a residential treatment center and after a hearing in circuit court; the petitioner was placed in a treatment facility for adolescents. After he appealed the decision and lost on appeal, the petitioner brought a habeas action in federal district court.
He challenged the constitutionality of the statutes and rules used to obtain his placement. After first noting that a habeas corpus action is not the appropriate vehicle to challenge the constitutionality of a statute on its face, the Court quickly moved on to the equal protection and due process arguments against petitioner’s placement. The court did not find an equal protection violation because petitioner failed to demonstrate that others in a similar position received more favorable treatment. The court rejected his attempt to compare himself to non-dependent children who were committed under the Baker Act. The Court went on to find that the petitioner received due process. The Court noted that he had an attorney and was permitted to present evidence.
10-672 ZT.pdf
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