IN
THE DISTRICT COURT OF APPEAL,
FOURTH
DISTRICT, STATE OF FLORIDA
JUDICIAL WATCH, INC.,
Appellant, Seventeenth
Judicial Circuit
Case No. 00-19722-04
v.
JANE CARROLL, SUPERVISOR OF Fourth
DCA Case No.
ELECTIONS, BROWARD COUNTY,
Appellee.
_________________________________/
APPELLANT’S SUGGESTION THAT
DISTRICT COURT OF APPEALS
CERTIFY THE TRIAL
COURT’S ORDER AS REQUIRING
IMMEDIATE
RESOLUTION BY THE
FLORIDA
SUPREME COURT
Pursuant
to Rule 9.125 of the Florida Rules of Appellate Procedure, Appellant JUDICIAL
WATCH, INC., respectfully suggests that this Court certify to the Florida
Supreme Court the trial court’s order denying Appellant timely access to
records sought pursuant to the Florida Public Records Act, Fla. Stat. Ann. §
119.07.
On
November 10, 2000, Appellant, a non-partisan, public interest legal
organization, requested access to
ballots cast in Broward County Florida during the November 7, 2000
election. Plaintiff sought access to
these ballots -- and is clearly entitled to access to them -- under the Florida
Public Records Act, Fla. Stat. Ann. § 119.07.
In fact, on or about November 29, 2000, Appellee had agreed to allow
Appellant access to the ballots, after Appellant had been forced to file suit
-- on Thursday, December 7, 2000. See
Exhibit 1. Appellee then reneged on
that prior agreement.
Because
the Florida Public Records Act specifically requires that a court “shall set an
immediate hearing, giving the case priority over other pending cases,” on
Tuesday, December 5, 2000, Appellant requested that the trial court schedule an
emergency, expedited hearing on Thursday, December 7, 2000 regarding a Motion
to Compel Access to Public Records filed by Appellant.
In the
afternoon of the following day, Wednesday, December 6, 2000, the trial court’s
judicial assistant, Ms. Pamela Desmond, telephoned Appellant and left a message
for Paul J. Orfanedes, an attorney in Appellant’s office. See Exhibit 2. When Mr. Orfanedes returned Ms. Desmond’s
call that same afternoon, Mr. Orfanedes was advised that the trial court did
not consider this an emergency matter, that the trial court was conducting a
trial that needed to be completed by the end of the week, and Appellant could
either set the matter for a hearing during the trial court’s regular motions
calendar, in which case the motion would be heard on a first-come, first-served
basis, or the trial court would specially set the motion for a hearing on
Friday, December 15, 2000. Id. In fact, earlier in the morning on
Wednesday, December 6, 2000, Appellee had agreed to allow Appellant access to
the ballots beginning at 10:00 a.m. on Thursday, December 7, 2000. See Exhibit 3. Mr. Orfanedes advised Ms. Desmond that the
parties had worked out their differences earlier that day. See Exhibit 2.
In the
interim, however, presidential candidate George W. Bush and the Republican
Party sought to intervene to prevent Appellant from accessing the ballots. However, at no point on Wednesday, December
6, 2000 was Appellant ever advised by attorneys for Appellee, Governor Bush or
the Republican Party, or anyone else, that Governor Bush and the Republican
Party sought to intervene in this action.
On the
morning of December 7, 2000, only hours before Appellant was to begin reviewing
the ballots, counsel for Appellee, Governor Bush and the Republican Party
appeared before the trial court seeking an injunction to prevent the ballot
access that Appellee had agreed previously.
Counsel claim that proper notice to the candidates had not been given,
and, accordingly, asked that Appellant be denied access the ballots. However, any representation that Appellant
had not had ample time to provide such notice are suspect, particularly
because: (1) Appellee admitted had
notice of Appellee’s request for ballot access on November 10, 2000, the date
the request was made; (2) eight days earlier, on or about November 29, 2000,
Appellee agreed to provide Appellant access to the ballots on December 7, 2000,
allowing ample time for the notice to be provided; (3) Governor Bush and the
Republican Party, the only party to object, obviously had notice that Appellant
was going to begin reviewing the ballots on December 7, 2000, because they had
sought to intervene; and (4) this matter had been widely publicized. In fact, Appellee’s counsel admitted that
notice had been provided: “All that statute requires is that we give reasonable
notice and I think we did that. All the
candidates were called [Wednesday] and told about this.” See Exhibit 6.
Despite
advising Appellant the previous day that it did not consider this an emergency
matter and that it was otherwise unavailable for an emergency hearing because
it was in trial, the trial court
nonetheless held an ex parte emergency hearing on the morning of
December 7, 2000 -- without counsel for Appellant being present -- after which
it enjoined Appellee from giving Appellant access to the ballots. Because Appellant’s counsel received only ˝
hour’s notice of the emergency hearing, he was unable to attend. Nor was Appellant ever advised by the trial
court that it would be proceeding with an emergency hearing in this matter. At the ex parte, emergency hearing,
the trial court entered an order preventing timely ballot access on December 7,
2000. See Exhibit 4.
Appellee
now seeks to delay the inspection until December 14, 15, or 18, 2000. See
Exhibit 5. And, the trial court
indicated to a third party source that it would not further entertain the
matter this week. See Exhibit
7. Clearly, Appellee, intervenors and
the trial court have frustrated Appellant’s efforts to undertake a timely
review, in the public interest, of the Broward County ballots, despite the fact
that the Florida Public Records Act specifically requires accelerated hearing
and immediate compliance with Florida Public Act requests. Fla. Stat. Ann. § 119.11.
WHEREFORE,
Appellant respectfully requests that this Court certify the trial court’s Order
as requiring immediate resolution by the Florida Supreme Court. In the alternative, Appellant respectfully
requests that the Court consider this mater on an expedited basis, pursuant to
Rule 9.300(c) of the Florida Rules of Appellate Procedure, in order to allow
timely access to the ballots.
The
undersigned expresses a belief, based on a reasoned and studied professional
judgment, that this appeal requires immediate resolution by the Supreme Court
and is of great public importance.
JUDICIAL WATCH, INC.
By: _____________________________
Larry Klayman, Esq.
Fla. Bar. No. 246220
501 School Street, S.W.
Suite 725
Washington, DC 20024
(202) 646-5162 (office)
(202) 646-5199
(facsimile)
Attorney for Judicial
Watch, Inc.
CERTIFICATE
OF SERVICE
I hereby certify that on December 8, 2000 a true and correct copy of the foregoing
APPELLANT’S SUGGESTION THAT DISTRICT COURT OF APPEALS CERTIFY THE TRIAL COURT’S
ORDER AS REQUIRING IMMEDIATE RESOLUTION BY THE FLORIDA SUPREME COURT was
served, via facsimile and first class U.S. mail, postage prepaid, on the
following:
James A. Cherof, Esq.
Samuel S. Goren, Esq.
JOSIAS, GOREN, CHEROF,
DOODY
& EZROL, P.A.
3099 East Commercial
Blvd., Suite 200
Ft. Lauderdale, FL 33309
William R. Scherer, Esq.
Albert L. Frevola, Jr.,
Esq.
CONRAD & SCHERER
P.O. Box 14723
Ft. Lauderdale, FL 33302
_____________________________
Paul J. Orfanedes