SC13-1988 Initial Brief - Florida State Supreme Court · SUMMARY OF ARGUMENT . In this case of...

Electronically Filed 10232013 092251 AM ET

RECElVED 10232013 092343 Thomas D Hall Clerk Supreme Court

THE SUPREME COURT OF FLORIDA

CASE NO SC13shy

BETH FLANSBAUM-TALABISCO

Petitioner

vs

STATE OF FLORIDA

Respondent

DISCRETIONARY PROCEEDINGS TO REVIEW A DECISION OF THE FOURTH DISTRICT COURT OF APPEALS

PETITIONERS BRIEF ON JURISDICTION

RICHARD L ROSENBAUM ESQ LARRY S DAVIS ESQ 888 Southeast 3 Avenue 1926 Harrison Street Suite 500 Hollywood FL 33020 Ft Lauderdale FL 33316 Telephone 954-927-4249 Telephone 954-522-7007 Facsimile 954-927-1653 Facsimile 954-522-7003 Florida Bar No 437719 Florida Bar No 394688 Larrylarrysdavislawcom RichardRLRosenbaumcom PleadingsRLRosenbaumcom

TABLE OF CONTENTS Pagg

Table of Contents i

Table of Citatiumlons and Agraveuthorities ii-iii

Preliminary Statement 1

Statement of the Case 2-3

Statement of the Facts 3-4

Summary of Argument 4

Arguments 5-9

I CERTIORARI REVIEW IS WARRANTED AS THE DECISION BELOW EXPRESSLY DECLARES SECTIONS 838015(1) 838016(1) AND 838022 FLASTAT VALID 5-6

II CERTIORARI REVIEW IS WARRANTED AS THE PANEL DECISION EXPRESSLY AFFECTS A CLASS OF CONSTITUTIONAL OR STATE OFFICERS 7-9

Conclusion 9

Certificate Regarding Type Size and Font 9

Certificate of Service 10

1

TABLE OF CITATIONS AND AUTHORITIES

Pagg CITATIONS

Cases

Citizens United v Federal Election 558 US 310 (2010) 6

Morse v Frederickt551 U S 393 (2007)6

Public Defender 11 Jud Cir v State 115 So3d 261 (Fla 2013) 7

School Bd ofPalm Beach County v Survivors Charter Schools Inc 3 So3d 1 220

(Fla 2009)7

State v Flansbaum-Talabisco __ So 3d _(Fla 4th DCA July 24 2013)

[4D12-946]49

State v Hocker 39 Fla 477 22 So 721 (1897)u8

State v Jefferson 758 So2d 661 (Fla 2000)6

State i Robinson 132 So 2d 156 (Fla 1961) 8

Other Authorities

Florida Citizens Right to Honest Government Act4

Rule 3190(c)(4) Fla RCrimP 2

Rule 9030(a)(2)(i) FlaRAppP 5

Rule 9030(a)(2)(iii) FlaRAppP 7

11

TABLE OF CITATIONS AND AUTHORITIESTcontd)

Pagg

Rule 9220 Fla R App P 1

Section 838015(1) Fla Stat24


Section 838016 Fla Stat2


111

PRELIMINARY STATEMENT

The following symbols abbreviations and references will be utilized

throughout Petitioners Brief on Jurisdiction

The term Petitioner shall refer to the Defendant in the Circuit Court

Mayor Beth Flansbaum-Talabisco

The term Respondent shall refer to the Plaintiff in the Circuit Court the

State of Florida

References to the Record below shall be indicated by an R followed by the

appropriate page number (R )

References to the transcripts of the hearings conducted at the trial court level

shall be indicated by a T followed by the appropriate volume and page number

(T )

An Appendix has been filed in accordance with Rule 9220 Fla R App P

References to the documents contained iumln the Appendix shall be indicated by an

A followed by the appropriate page number (A )

All emphasis indicated herein have been supplied by Petitioner unless

otherwise specified herein

STATEMENT OF THE CASE

Mayor Beth Flansbaum-Talabisco (hereinafter referred to as Talabisco)

was arrested by law enforcement officials and subsequently charged by

Information with Unlawful Compensation under Florida Statutes Section

838016(1) (Count I) Bribery under Florida Statutes Section 838015(1) (Count

II) Official Misconduct under Florida Statutes Section 838022 (Count III) and

Conspiracy to Commit Unlawful Compensation under Florida Statutes Section

838016 (Count IV) (R 9-13) Mayor Talabisco stood mute at arraignment and

the trial judge entered a not guilty plea on her behalf (R 13)

On February 8 2012 Petitioner filed a Sworn Motion to Dismiss pursuant to

Fla R Crim P 3190(c)(4) (R 87-98) On February 13 2012 the State filed a

Traverse (R 99-104) On February 21 2012 Petitioner filed a Response to States

Traverse of Defendants Sworn Motion to Dismiss (R 109) On February 23 2012

the trial court conducted a hearing on the Petitioners Sworn Motion to Dismiss (T

1-44) On March 14 2012 the trial court issued the Order Granting Defendants

Sworn Motion to Dismiss (R 114-16) Thereafter the State timely filed a Notice

of Appeal

On July 24 2013 the Fourth District Court of Appeal reversed the trial

courts Order of dismissal Rehearing was denied on September 18 2013 and

Mayor Talabiscos Motion to Stay Issuance of the Mandate was denied on October

2

9 2013 Petitioners Notice to Invoke Discretionary Jurisdiction of this Court was

timely filed October 1 2013

STATEMENT OF FACTS

The case at bar involves Beth Flansbaum-Talabisco the Mayor of the City

of Tamarac Florida

Shawn Chait and Bruce Chait (collectively referred to as the Chaits)

owned a company Prestige Homes of Tamarac Incorporated (Prestige) which

desired to build a residential housing development in Tamarac (the Project) (R

2) The Chaits believed that Commissioner Talabisco then a Mayoral candidate

was in favor of the Project and would vote in favor of the Project if elected Mayor

(R 2) The State admitted this fact (R 81-84) The Chaits funded an electioneering

communications organization (ECO) for political mailers and paid for a poll to

be conducted

All of Mayor Beth Flansbaum-Talabiscos charges are based on the Chaits

financial support to the Mayoral campaign In its Order Granting Defendants

Sworn Motion to Dismiss the trial Court the Honorable Cynthia Imperato ruled

that [t]here is no evidence that Beth Flansbaum-Talabisco benefitted personally in

any manner All of the evidence presented establishes the only benefit was to the

campaign and the ECO that had been formed (R 115)

Beth Flansbaum-Talabisco was a Commissioner of District II in Tamarac FL and was elected to that position in 2003

3

The District Court of Appeal issued a panel opinion reversing and

remanding the trial courts decision stating they were tak[ing] this opportunity to

construe and discuss Floridas anti-corruption statutes State v Flansbaum-

Talabisco So 3d _ (Fla 4th DCA July 24 2013) [4D12-946] The District

Court construed what may constitute a benefit for prosecution under Floridas

anti-corruption statutes The Court expressly declared the definition of benefit

in Chapter 838 as broad enough to include receiving assistance in her election

effort Id

SUMMARY OF ARGUMENT

In this case of first impression Petitioner seeks discretionary review of the

Fourth District Court of Appeals panel decision holding that financial support to a

campaign is a benefit to a public official for purposes of a corruption prosecution

under the Florida Citizens Right to Honest Government Act sect 838015(1) Fla

Stat Discretionary review is warranted in this case to review the decision of the

Fourth District Court of Appeal based upon two distinct theories (1) certiorari

review is warranted as the panel decision below expressly declares valid a Florida

state statute and (2) certiorari review is warranted as the panel decision expressly

affects a class of constitutional or state officers

4

ARGUMENTS

I CERTIORARI REVIEW IS WARRANTED AS THE DECISION BELOW EXPRESSLY DECLARES SECTIONS 838015(1) 838016 1) AND 838022 FLA STAT VALID

This Court should accept discretionary review in this case based on Rule

9030(a)(2)(i) FlaRAppP which provides that [t]he discretionary jurisdiction

of the supreme court may be sought to review decisions of the district court of

appeal that expressly declare valid a state statute

Sub judice the Fourth District Court expressly declared sectsect 838015(1)

838016(1) and 838022 Fla Stat valid as applied to Mayor Beth Flansbaum-

Talabisco In its written opinion the panel discussed various examples of what

may constitute a benefit for prosecution under the Florida Statutes Specifically

the panel held that financial support to a campaign is a benefit to a public official

for purposes of a corruption prosecution While Mayor Talabisco challenged the

validity and application of Florida Statute sect838015(1) in particular the Fourth

District Court of Appeal reversed the trial courts dismissal of Talabiscos charges

misconstruing that the definition of benefit in Chapter 838 is broad enough to

include receiving assistance in election efforts of a campaign fund

The Fourth District Courts holding that financial support to a candidates

campaign fund is an actionable benefit to the candidate herself will have sweeping

implications It allows the State to allege public corruption and convict under

5

Florida Statute sect838015(1) when the only benefh is to the campaign and there is

no personal benefit to the candidate

In the decade since the Florida Citizens Right to Honest Government Act

[838015 Fla Stat] has been in effect not only has the funding of campaigns

dramatically increased but also broad restrictions on campaign funding have been

found unconstitutional In its analysis overturning campaign finance laws the

United States Supreme Court held that political spending is a form of protected

speech under the First Amendment and that any other result would chill political

speech speech that is central to the meaning and purpose of the First Amendment

Citizens United v Federal Election 558 US 310 (2010) citing Morse v

Frederick 551 U S 393 403 (2007)

The rationale for reviewing a decision that decides the constitutionality of a

statute is the same no matter the result in the district court to resolve doubt on the

statutes validity ifpossible by construing it in such a manner so as to avoid an

unconstitutional result State v Jefferson 758 So2d 661 664 (Fla 2000) Mayor

Talabisco urges this court to accept jurisdiction to resolve the misconstruction

apparent in the panel opinion or in the alternative to declare that Florida Statute sect

838015(1) is so vague and ambiguous so as to be invalid as applied to the case at

bar

6

II CERTIORARI REVIEW IS WARRANTEDAS THE PANEL DECISION EXPRESSLY AFFECTS A CLASS OF CONSTITUTIONAL OR STATE OFFICERS


9030(a)(2)(iii) FlaRAppP Mayor Talabisco asserts that she qualifies as a state

officer under the aforementioned Rule

This Court generally reviews decisions that affect a class of constitutional

officers See eg Public Defender 11 Jud Cir v State 115 So3d 261 (Fla

2013) [decision directly affects a class of constitutional officers - Public

Defender] see also School Bd of Palm Beach County v Survivors Charter

Schools Inc3 So3d 1220 (Fla 2009) [same - School Boards] However cases

in which mayors have been charged are far less common

Subjudice Mayor Talabisco was a member of a class of individuals which

is affected by the panel decision in Talabisco The class requirement suggests

that the officer must exist in more than one location throughout the State Indeed

many cities in Florida elect a mayor Talabisco as well as any constitutional or

state officers amidst election efforts may not receive contributions to his or her

campaign fund without subjecting themselves to the broad and unprincipled

application of the aforementioned statutes The allowable scope of campaign

conduct remains unknown to all classes of public officers If the panel decision

7

stands State officers can be prosecuted for public corruption and for lawful

fundraising activities

The Court has nevermade a definitive statement that all local officials and

entities are excluded from the State Supreme Courts jurisdiction if they fail to

qualify as constitutional officers Therefore Talabisco argues that a class of state

officers should include offices of trust created and authorized to independently

exercise identical powers of government as part of some larger statewide scheme

In State v Hocker 39 Fla 477 22 So 721 (1897) this Court held that

A person in the service of the government who derives his position from a duly and legally authorized election or appointment whose duties are continuous in their nature and defined by rules prescribed by government and not by contract consisting of the exercise of important public powers trusts or duties as a part of the regular administration of the government the place and the duties remaining though the incumbent dies or is changed every office in the constitutional meaning of the term implying an authority to exercise some portion of the sovereign power either in making executing or administering the laws A State officer is one who falls within this definition and whose field for the exercise of his jurisdiction duties and powers is co-extensive with the limits of the State and extends to every part of it

The obvious purpose of the subject constitutional provision was to authorize

this Court to review decisions which in the ultimate would affect all constitutional

or state officers exercising the same powers even though only one of such officers

might be involved in the particular litigation State v Robinson 132 So2d 156

(Fla 1961) The panel opinion places in jeopardy every elected official engaging in

8

permissible and lawful campaign fundraising Public officials who request or

receive authorized financial campaign assistance from supporters who have or may

have matters pending before governmental bodies are at significant risk of

prosecution This applies to every branch and level of Florida government

In this case the panel decision is not merely cumulative to existing law it is

a case of first impression The decision below has a direct and exclusive impact on

the subject class of elected officials Review is warranted

CONCLUSION

Based upon the foregoing grounds and authority the Florida Supreme Court

should invoke discretionary jurisdiction to review the Fourth District Court of

Appeal s Opinion in State v FlansbaumplusmnTalabisco

CERTIFICATE REGARDING TYPE SIZE AND STYLE

Petitioner Beth Flansbaum-Talabisco certifies that this Brief on Jurisdiction

is typed in 14 point Times New Roman

9

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that on October 23 2013 I electronically filed the

foregoing with the Clerkof the Court using the ePortal system and forwarded an

electronic copy via email to Office of the Attorney General 1515 N Flagler Drive

9h Flr West Palm Beh FL 33401 (crimappwpbmyfloridalegalcom)

Respectfully Submitted

SRichard Rosenbaum RICHARD L ROSENBAUM ESQ 888 Southeast 3d Avenue Suite 500 Ft Lauderdale FL 33316 Telephonet 954-522J7007 Facsimile 954-522-7003 Florida Bar No 394688 RichardRLRosenbaumcom PleadingsRLRosenbaumcom

SLarry Davis LARRY S DAVIS ESQ 1926 Harrison Street Hollywood FL 33020 Telephone 954-927-4249 Facsimile 954-927-1653 Florida Bar No 437719 Larrylarrysdavislawcom

10

TABLE OF CONTENTS Pagg

Table of Contents i

Table of Citatiumlons and Agraveuthorities ii-iii

Preliminary Statement 1

Statement of the Case 2-3

Statement of the Facts 3-4

Summary of Argument 4

Arguments 5-9

I CERTIORARI REVIEW IS WARRANTED AS THE DECISION BELOW EXPRESSLY DECLARES SECTIONS 838015(1) 838016(1) AND 838022 FLASTAT VALID 5-6

II CERTIORARI REVIEW IS WARRANTED AS THE PANEL DECISION EXPRESSLY AFFECTS A CLASS OF CONSTITUTIONAL OR STATE OFFICERS 7-9

Conclusion 9

Certificate Regarding Type Size and Font 9

Certificate of Service 10

1


Pagg CITATIONS

Cases





(Fla 2009)7


[4D12-946]49




Other Authorities





11


Pagg






111







State of Florida





(T )






















of Appeal




2



STATEMENT OF FACTS


of Tamarac Florida








be conducted








3








effort Id

SUMMARY OF ARGUMENT










4

ARGUMENTS



















5











Frederick 551 U S 393 403 (2007)








bar

6



















7















8








CONCLUSION







9









10


Pagg CITATIONS

Cases





(Fla 2009)7


[4D12-946]49




Other Authorities





11


Pagg






111







State of Florida





(T )






















of Appeal




2



STATEMENT OF FACTS


of Tamarac Florida








be conducted








3








effort Id

SUMMARY OF ARGUMENT










4

ARGUMENTS



















5











Frederick 551 U S 393 403 (2007)








bar

6



















7















8








CONCLUSION







9









10


Pagg






111







State of Florida





(T )






















of Appeal




2



STATEMENT OF FACTS


of Tamarac Florida








be conducted








3








effort Id

SUMMARY OF ARGUMENT










4

ARGUMENTS



















5











Frederick 551 U S 393 403 (2007)








bar

6



















7















8








CONCLUSION







9









10







State of Florida





(T )






















of Appeal




2



STATEMENT OF FACTS


of Tamarac Florida








be conducted








3








effort Id

SUMMARY OF ARGUMENT










4

ARGUMENTS



















5











Frederick 551 U S 393 403 (2007)








bar

6



















7















8








CONCLUSION







9









10

















of Appeal




2



STATEMENT OF FACTS


of Tamarac Florida








be conducted








3








effort Id

SUMMARY OF ARGUMENT










4

ARGUMENTS



















5











Frederick 551 U S 393 403 (2007)








bar

6



















7















8








CONCLUSION







9









10



STATEMENT OF FACTS


of Tamarac Florida








be conducted








3








effort Id

SUMMARY OF ARGUMENT










4

ARGUMENTS



















5











Frederick 551 U S 393 403 (2007)








bar

6



















7















8








CONCLUSION







9









10








effort Id

SUMMARY OF ARGUMENT










4

ARGUMENTS



















5











Frederick 551 U S 393 403 (2007)








bar

6



















7















8








CONCLUSION







9









10

ARGUMENTS



















5











Frederick 551 U S 393 403 (2007)








bar

6



















7















8








CONCLUSION







9









10











Frederick 551 U S 393 403 (2007)








bar

6



















7















8








CONCLUSION







9









10



















7















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CONCLUSION







9









10















8








CONCLUSION







9









10








CONCLUSION







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