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Case Law - save on Lexis / WestLaw. IN THE SUPREME COURT OF THE STATE OF FLORIDA ______________________________ CASE NO. SC00-2431 On Appeal from the Second Judicial Circuit CASE NO. 1D00-4745 ______________________________ ALBERT GORE, Jr., Nominee of the Democratic Party of the United States for President of the United States et al., Appellants, vs. KATHERINE HARRIS, as SECRETARY OF STATE STATE OF FLORIDA, et al. Appellees, _____________________________________________________________ ______________________________ CASE NO. ______________________________ ALBERT GORE, Jr., Nominee of the Democratic Party of the United States for President of the United States, and JOSEPH I. LIEBERMAN, Nominee of the Democratic Party of the United States for Vice President of the United States, Petitioners, vs. KATHERINE HARRIS, as SECRETARY OF STATE STATE OF FLORIDA, and SECRETARY OF AGRICULTURE BOB CRAWFORD, SECRETARY OF STATE KATHERINE HARRIS AND L. CLAYTON ROBERTS, DIRECTOR, DIVISION OF ELECTIONS, individually and as members of and as THE FLORIDA ELECTIONS CANVASSING COMMISSION, Respondents. ____________________________________________________________ REPLY TO APPELLEES' "CLARIFICATION OF ARGUMENT" John D.C. Newton, II Mitchell W. Berger Florida Bar No. 0244538 Florida Bar No. 311340 Berger Davis & Singerman Berger Davis & Singerman 215 South Monroe Street, Suite 705 350 E. Las Olas Blvd, Suite 1000 Tallahassee, Florida 32301 Fort Lauderdale, Florida 33301 Telephone: 850/561-3010 Telephone: 954/525-9900 Facsimile: 850/561-3013 Facsimile: 954/523-2872 W. Dexter Douglass David Boies Florida Bar No.0020263 Boies, Schiller & Flexner LLP Douglass Law Firm 80 Business Park Drive, Suite 110 211 East Call Street Armonk, New York 10504 Tallahassee, Florida 32302 Telephone: 914/273-9800 Telephone: 850/224-6191 Facsimile: 914/273-9810 Facsimile: 850/224-3644 Ron Klain Jeffrey Robinson c/o Gore/Lieberman Recount Baach Robinson & Lewis 430 S. Capitol St. One Thomas Circle, Suite 200 Washington, DC 20003 Washington, DC 20003 Telephone: 202/863-8000 Telephone: 202/833-7205 Facsimile: 202/863-8603 Facsimile: 202/466-5738 Andrew Pincus Mark R. Steinberg c/o Gore/Lieberman Recount 2272 Live Oak Drive West 430 S. Capitol St. Los Angeles, CA 90068 Washington, DC 20003 Telephone: 323/466-4009 Telephone: 202/863-8000 Facsimile: 202/863-8603 Joseph E. Sandler Sandler & Reiff, P.C. Theresa Wynn Roseborough 6 E Street, S.E. 999 Peachtree Street, N.E. Washington, D.C. 20003 Atlanta, GA 30309-3996 Telephone: 202/43 7680 Telephone: 404/853-8100 Facsimile: 202/543 7686 Facsimile: 404/853-8806 Kendall Coffey Benedict E. Kuehne Florida Bar No. 259861 Florida Bar No. 233293 2665 S. Bayshore Drive, Suite 200 Sale & Kuehne, P.A. Miami, FL 33133 100 S.E. 2d Street, Suite 3550 Telephone: 305/285-0800 Miami, FL 33131-2154 Facsimile: 305/285-0257 Telephone: 305/789- 5989 Facsimile: 305/789-5987 John J. Corrigan, Jr. Dennis Newman 896 Beacon St. 580 Pearl St. Boston, MA 02215 Reading, MA 01867 Telephone: 617/247-3800 Telephone: 781/944-0345 Facsimile: 617/867-9224 Facsimile: 617-742-6880 COUNSEL FOR ALBERT GORE, JR. AND JOSEPH I. LIEBERMAN TABLE OF CONTENTS REPLY 1 ARGUMENT 2 I. THE FLORIDA LEGISLATURE HAS CONFERRED JURISDICTION ON THIS COURT TO REVIEW A CONTEST PROCEEDING......................2 II. SECTION 103.011 DOES NOT PURPORT TO OVERRIDE THE CONTEST PROCEEDINGS ESTABLISHED IN SECTION 102.168........4 III. ARTICLE II OF THE U.S. CONSTITUTION DOES NOT PRECLUDE THIS COURT FROM EXERCISING THE JURISDICTION CONFERRED BY THE FLORIDA LEGISLATURE........................................................5 IV. APPELLEES' OTHER UNTIMELY MERITS ARGUMENTS MISSTATE THE RECORD................................................................................... 8 CONCLUSION................................................................................................. .....10 REPLY TO APPELLEES' "CLARIFICATION OF ARGUMENT" Appellants just became aware this morning that Appellees have filed an 11-page "Clarification of Argument" (even though this Court had previously denied the parties' motions for enlarging the page limits of their briefs and the matter was already submitted), changing appellees' position on the issue of jurisdiction and rearguing certain issues on the merits. As the Chief Justice noted at the oral argument yesterday, neither side raised any question of the Court's jurisdiction in their briefs. Indeed, all parties agreed in their briefs that this Court had jurisdiction. Plaintiffs urged the Court to exercise its jurisdiction; Governor Bush argued that this Court might decline to exercise its jurisdiction; the Secretary of State took no position as to whether or not this Court should exercise its jurisdiction. All parties, however, agreed that this Court had jurisdiction, and that the only issue was whether this case was a matter of great public importance that required immediate resolution. At the oral argument, counsel for all parties (plaintiffs' counsel and both defendants' counsel) again reiterated their position (and the clear settled law) that this Court has jurisdiction to review the Circuit Court's ruling. We respectfully submit that the conclusion could not be otherwise. The Legislature clearly intended that Section 102.168 contests generally be subject to judicial review. Nor is there any support for the proposition that Section 102.168 was not intended to apply to Presidential elections as well as other elections. (Again, it could not be otherwise; what legislature would deny the protections of Section 102.168 in the most important election of all and do so by omission alone?) Nor is it plausible that the Legislature intended that contests of Presidential elections be decided finally and without any appellate review by the Circuit Court that was assigned the case again, by omission alone. ARGUMENT I. UNDER WELL-ESTABLISHED PRINCIPLES OF STATUTORY CONSTRUCTION, THE FLORIDA LEGISLATURE HAS CONFERRED JURISDICTION ON THIS COURT TO REVIEW AN ELECTION CONTEST PROCEEDING. Under the statutes enacted by the Florida Legislature, the results of this election and every election are subject to judicial determination in an election contest proceeding. See Section 102.168, Fla. Stat. Subsection (1) of that statute provides that the initial determination is made in a Circuit Court. See id. The issue here is whether that proceeding is subject to review here, or anywhere, on appeal. Under the settled law of Florida, which existed before this election occurred and this dispute arose, this Court has appellate jurisdiction over all matters determined in the lower courts unless the Legislature has expressly precluded such review. See, e.g., Leanard v. State, 760 So. 2d 114, 118 (Fla. 2000) (Legislature will not be presumed to erect jurisdictional bar to appellate review without express statement to that effect; Florida statutes are traditionally construed to preserve judicial review "rather than limiting the subject matter of the appellate courts"). The Florida Constitution (in Florida, unlike in many states, itself an act of the Legislature), provides that this Court has appellate jurisdiction over "any order of judgment of a trial court certified by the district court of appeal in which an appeal is pending to be of great public importance." Article V, Section 3(b)(5) (emphasis added). This is also true as an established matter of statutory interpretation of state law, even aside from the Florida Constitution. "It is an elementary principle of statutory construction that in determining the effect of a later enacted statute, courts are required to assume that the Legislature passed the latter statute with knowledge of the prior existing laws." Romero v. Shadywood Villa Homeowners Ass'n, 657 So. 2d 1193, 1195-96 (Fla. 3d DCA 1995); State ex rel. Szabo Food Servs. v. Dickinson, 286 So. 2d 529, 531 (Fla. 1973) (Legislature in re-enacting statutes is presumed to know and adopt the settled construction placed thereon by state tribunals). The Legislature enacted the election contest statutes against a backdrop of this Court exercising appellate review in legions of cases involving disputes about the proper outcomes of elections. See, e.g., State v. Peacock, 125 Fla. 810 (1936); Farmer v. Carson, 110 Fla. 245 (1933); State v. Smith, 107 Fla. 134 (1932); State v. Williams, 97 Fla. 159 (1929). Never before has this settled jurisdiction even been questioned under Florida law. Because no such express preclusion is contained in the statutes governing contest proceedings, the courts have continued to exercised their accepted authority to exercise appellate review in such cases. See, e.g., Beckstrom v. Volusia County Canvassing Bd., 707 So. 2d 720 (Fla. 1998); Harden v. Garrett, 483 So. 2d 409 (Fla. 1985); Bolden v. Potter, 452 So. 2d 564 (Fla. 1984); McPherson v. Flynn, 397 So. 2d 665 (Fla. 1981). None of these established principles of Florida law applies any differently in election contest proceedings than in any other judicial proceeding. Because the contest statute does not expressly preclude judicial review, this Court has the authority under Florida law to exercise its traditional appellate jurisdiction to decide this matter. II. SECTION 103.011 DOES NOT PURPORT TO OVERRIDE THE CONTEST PROCEEDINGS ESTABLISHED IN SECTION 102.168. Appellees argue that somehow Section 103.011, which discusses the selection of Presidential electors, overrides the provisions of Section 102.168, which provides for determination of election contests in all elections, without exception. Appellees base this unique suggestion on the ministerial statute which directs the Secretary of State to certify as elected the Electors of the Presidential candidate "who receive[d] the highest number of votes." Fla. Stat. 103.011 (2000). Yet this ministerial act cannot nullify the presence of the remaining statutes enacted by the Legislature which are designed to determine which Presidential candidate did in fact receive the highest number of votes (and therefore, is entitled to the benefit of 103.011). The single case on which Appellees rely is the Circuit Court opinion in Fladell v. Florida Elections Canvassing Comm'n, which has since been vacated by this Court, which expressly held that "the Court's rulings thereon are a nullity." See Fladell v. Palm Beach County Canvassing Bd., Nos. 00- 2372 & 00-2376, slip op. at 4 (Fla. Sup. Ct. Dec. 1, 2000). Moreover, by reaching the merits of that case, this Court implicitly concluded that indeed it had jurisdiction over a contest involving the Presidential election. III. ARTICLE II OF THE U.S. CONSTITUTION DOES NOT PRECLUDE THIS COURT FROM EXERCISING THE JURISDICTION CONFERRED BY THE FLORIDA LEGISLATURE. The question raised by this Court at oral argument is whether any principles of federal law would preclude this Court from exercising appellate jurisdiction in this matter. The question appears to focus on the possible effects of Article II of the U.S. Constitution, Title 3 of the U.S. Code, and the Supreme Court's decision in McPherson v. Blacker, 146 U.S. 1 (1892). None of these authorities militates for changing established principles of Florida law providing that this Court has the authority to exercise its traditional function of appellate review unless expressly precluded by the Legislature, which has not occurred here. Title 3 of the U.S. Code counsels strongly against subsequent changes in the laws governing the choice of Presidential electors that were in place on the date of the election. The U.S. Supreme Court recently reinforced this point. See Bush v. Palm Beach County Canvassing Bd., No. 00-836, slip op. at 6 (U.S. Dec. 4, 2000). Again, the laws in place at the time of the election here were the statutes governing the contest proceeding, the statutes providing for established appellate review of trial court decisions, and the standard principle of Florida law a principle of statutory construction that appellate review is authorized unless expressly precluded by the Legislature. See supra Section I. Indeed, Title III expressly recognizes and approves the fact that a State Legislature may choose to make "its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures." 3 U.S.C. Sec. 5. Also, Article II of the U.S. Constitution and McPherson, do not in any way overturn this Court's appellate jurisdiction in this matter as provided by Florida law. Under Article II of the U.S. Constitution, the Florida Legislature has plenary power over the place and manner of choosing Presidential electors, but the Congress has plenary power over the time of choosing the electors. Congress has exercised that power by providing for a uniform Election Day nationwide. See 3 U.S.C. 1. Thus, the Legislature has plenary power to provide how electors will be chosen, under the Constitution, but that choice must occur on Election Day. Here the Legislature provided, by laws in place at the time of the election, that electors are to be determined by popular vote, subject to judicial contest proceedings to determine the actual outcome of that popular vote. Those laws cannot be changed after the election, either by the Legislature purporting now to appoint its own electors, or by this Court or any other court explicitly altering the standard principles of Florida law governing the appellate jurisdiction of the courts. Given that the laws in place at the time provided for appellate review in this Court unless the Legislature had expressly precluded such review, those laws do not run afoul of Article II. This is the law also under McPherson. See 146 U.S. at 39-40; see also id. at 24-26. Indeed, any change in Florida law that would override the established principle that appellate review lies in the higher courts would itself constitute an impermissible change in Florida's election laws subsequent to the date of the election and would raise serious concerns under Title 3 of the U.S. Code. Appellees' argument that reversing the Circuit Court would somehow change Florida law (and, therefore, implicate federal concerns) rests on the erroneous premise that current Florida law provides that judicial review of ballots is somehow new and must be based on an "abuse of discretion" standard. Judicial review of contested ballots is a longstanding principle of Florida law. Every witness to address the issue at trial (witnesses for both plaintiffs and defendants) testified that manual recounts of ballots was necessary in close elections. And every time anyone has visually inspected ballots not read by the machines, hundreds of clear votes have been found. There is, of course, no mention of canvassing board discretion in Section 102.168. In Section 102.166, the only discretion granted the board is whether or not to do a sample recount. Normal statutory interpretation principles dictate that the legislature having expressly provided for discretion in one instance, discretion should not be implied in other instances where the legislature did not provide for discretion. No case holds that a canvassing board's interpretation of voter intent with respect to a ballot cast is entitled to deference in a subsequent judicial proceeding. The cases previously cited to the Court by plaintiff in fact demonstrate the contrary. Even the Pullen v. Mulligan case relied on by the defendants provides for original judicial review of contested ballots (561 N.E.2d at 609, 613, where the Illinois Supreme Court found it was error for the trial court not to "visually inspect" the ballots). Moreover, with respect to the 9,000 Miami-Dade ballots at issue, there has never been a manual review of those ballots, and hence no exercise of any "discretion" as to the voters' intent. It is the position of defendants, not the position of plaintiffs, that would represent a departure from settled Florida law. IV. APPELLEES' OTHER UNTIMELY MERITS ARGUMENTS MISSTATE THE RECORD. 1. The 215 net votes for Vice President Gore from the manual recount in Palm Beach County was undisputed at trial, as stated in the uncontradicted testimony of Judge Burton (Tr. 278), and the express admission of the Palm Beach County Canvassing Board in its Answer to paragraph 60 of the Complaint. There is no support in the record for defendants' post-trial assertion to the contrary. 2. The Miami-Dade County Canvassing Board stopped its manual recount (less than six hours after voting to count all undervotes) following the physical invasion of its offices by demonstrators and for the sole stated reason that it lacked sufficient time to complete the recount and an incomplete count would disfavor voters in uncounted precincts. As this Court is aware, plaintiffs' longstanding and repeated request (repeatedly opposed by defendants) has been, and is, to count all 9,000 of the remaining undervotes. 3. The only authority cited by defendants in support of the trial court's "reasonable probability" standard in Smith v. Tynes (a 1st DCA opinion decided before the present contest statute was adopted, which deals not with whether to judicially review contested ballots but with what evidence is required for a revote when all that is alleged is campaign violations) and Davies v. Bossert (a 3rd DCA opinion that does not even use the term "reasonable probability" and is not even an elections case). Plaintiffs have already stated their position as to why the "reasonable probability" standard is inconsistent with the statutory language of Section 102.168(3)(c), inconsistent with settled Florida precedent, and (in any event) cannot apply before ballots placed in evidence are even considered by the Court. CONCLUSION Under established principles of Florida law, which are not superseded by any federal law, this Court has appellate jurisdiction over this matter. RESPECTFULLY SUBMITTED ON THIS 8th DAY OF DECEMBER 2000. _______________________________ Mitchell W. Berger Berger Davis & Singerman 350 East Las Olas Boulevard, Suite 1000 Fort Lauderdale, Florida 33301 Telephone: 954/525-9900 Facsimile: 954/523-2872 ______________________________ David Boies Boies, Schiller & Flexner LLP 80 Business Park Drive, Suite 110 Armonk, New York 10504 Telephone: 914/273-9800 Facsimile: 914/273-9810 ________________________ Mark R. Steinberg 2272 Live Oak Drive West Los Angeles, CA 90068 Telephone: 213/430-6290 Facsimile: 213/430-8059 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing has been furnished by United States mail, hand delivery or facsimile transmission this 8th day of December, 2000 to the following: Barry Richard Greenberg Traurig 101 East College Avenue Tallahassee, FL 32301 for Governor Bush Deborah Kearney, General Counsel Florida Department of State 400 South Monroe Street, PL 02 Tallahassee, FL 32399 for Secretary Katherine Harris and the Elections Canvassing Committee Donna E. Blanton Steel Hector & Davis 215 South Monroe Street, Suite 601 Tallahassee, FL 32301-1804 for Secretary Katherine Harris and the Elections Canvassing Committee Tucker Ronzetti Assistant County Attorney 111 N.W. 1st Street Miami, FL 33130 for Miami-Dade County Canvassing Board Ben Ginsburg State Republican Headquarters 420 West Jefferson Street Tallahassee, FL 32301 for the Republican Party Craig Meyer Florida Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399 Andrew McMahon Palm Beach County Attorney Office 301 N Olive Avenue, Suite 601 West Palm Beach, FL 33401-4705 for Palm Beach Canvassing Board Bruce Rogow Bruce S. Rogow, P.A. 500 East Broward Boulevard, Suite 1930 Ft. Lauderdale, Florida 33394 for Palm Beach Canvassing Board Michael S. Mullin 191 Nassau Place Yulee, Florida 32097 for Nassau County Canvassing Board Terrell C. Madigan Harold R. Mardenborough, Jr. McFarlain Wiley Cassedy & Jones 215 South Monroe Street, Suite 600 Tallahassee, Florida 32301 for Intervenor Butler R. Frank Myers Messer Caparello & Self 215 South Monroe Street, Suite 701 Tallahassee, Florida 32301 for Intervenor Named West Florida Voters _______________________________ Attorney
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