motion to dismiss — Cable-Vision, Inc. v. Freeman

fiLeED

*C 3 4976

In the Supreme Court of the United States

OCTOBER TERM, 1976

No. 76-627

CABLE-VISION, INC., a Florida Corporation, and

TELE-MEDIA COMPANY OF KEY WEST,

Its Successor in Interest,

Appellants,

VS.

WILLIAM A FREEMAN, JR., HARRY S. PRITCHARD,

JOHN W. PARKER, HARRY HARRIS and WILLIAM

CARTER, As and Constituting THE BOARD OF COUNTY

COMMISSIONERS OF MONROE COUNTY, a Political

Subdivision of the State of Florida,

Appellees.

On APPEAL FROM THE SUPREME CouRT

OF THE STATE OF FLORIDA

RULE 16 MOTION TO DISMISS AND/OR AFFIRM

PAuL E. SAwYer, Esq.

County Attorney for Monroe County

P. O. Box 571

Key West, Florida 33040

and

Horton, Perse & GINSBERG

410 Concord Building

Miami, Florida 33130

Attorneys for Appellees

E. Ll. Menvennaty, Inc., 926 Cherry Street, Kansas City, Mo. 641096, (816) 421-3030

TABLE OF CONTENTS

INTRODUCTION tae 1

THE MOTION—GROUNDS FOR DISMISSAL | AND/

OR AFFIRMANCE

OPINIONS BELOW .._—_— eT SE se Oe

NO JURISDICTIONAL GROUNDS. W000. 4

STATUTES AND ORDINANCE INVOLVED... —s 4

QUESTION PRESENTED...

STATEMENT OF CASE... 5

ARGUMENT—MOTION TO DISMISS OR AFFIRM

SHOULD BE GRANTED... ed

CONCLUSION . seal aaleioentesitesiiadiaainceaiiaiinaian-ostasbaihdaieen a

CERTIFICATE OF COUNSEL . edeoriasiaentameliaiine ae

APPENDIX—

Supreme Court Order of Transfer... AAI

Notice of Appeal . SS OCS

Motion to Dismiss or Transfer = AASB

Notice of Appeal . sasapplesisntinkasiiniecniithenieinecaaesonaibicasiagdnsaaae

Motion to Dismiss - LS LTE CO

Supreme Court Order of Dismissal _ . ...... AAI

Petition Under Florida Statutes, Section 59.45 AA12

Supreme Court Order Denying Petition _ AAI15

Table of Authorities

CASES

Golden Loaf Bakery, Inc. v. Charles W. Rex Construc-

tion Co., Fla. 1976, 334 So. 2d 585 11

Michigan-Wisconsin Pipeline Co. v. Calvert, 347 U. s.

157, 74 S. Ct. 396, 98 L. Ed. 583, 1953 14

Il

Randall v. Board of Commissioners of Tippecanoe

County, Indiana, 261 U.S. 252, 67 L. Ed. 637, 1923 __ 13-14

Short v. Grossman, Fla. 1971, 245 So. 2d 217... sit 11

Williams v. State of Florida, 399 U.S. 78, 90 S. Ct. 1893,

3 Oe OE Ne ee a:

CONSTITUTION, STATUTES AND ORDINANCE

Article V, Florida Constitution ss 9,10, 11

Chapter 65-1916, Laws of Florida... 4

Chapter 65-1927, Laws of Florida REA Sen 4

Ordinance 5-1973 of Monroe County, Florid +

In the Supreme Court of the United States

OCTOBER TERM, 1976

No. 76-627

CABLE-VISION, INC., a Florida Corporation, and

TELE-MEDIA COMPANY OF KEY WEST,

Its Successor in Interest,

Appellants,

vs

WILLIAM A FREEMAN, JR., HARRY S. PRITCHARD,

JOHN W. PARKER, HARRY HARRIS and WILLIAM

CARTER, As and Constituting THE BOARD,OF COUNTY

COMMISSIONERS OF MONROE COUNTY, a Political

Subd: vision of the State of Florida,

Appellees.

On APPEAL FROM THE SUPREME COURT

OF THE STATE OF FLORIDA

RULE 16 MOTION TO DISMISS AND/OR AFFIRM

I.

INTRODUCTION

The parties will alternately be referred to herein as

they stand in this Court, and as follows: appellants, Cable-

Vision, Inc., a Florida corporation, and Tele-Media Com-

pany of Key West, its successor in interest, as “CABLE-

VISION;” and appellees, William A. Freeman, Jr., Harry

S. Pritchard, John W. Parker, Harry Harris and William

2

Carter, as and constituting The Board Of County Commis-

sioners of Monroe County, a political subdivision of the

State of Florida, as “COMMISSIONERS.” The symbols

“A” and “AA” shall stand respectively for the appendices

filed by appellants and appellees. Contemporaneously

herewith appellees have filed a request to certify addi-

tional portions of the record. Conformed copies of these

portions of the record are reproduced, infra, as a part of

appellees’ appendix.

All emphasis appearing in this motion is supplied by

counsel unless otherwise noted.

II.

THE MOTION—GROUNDS FOR DISMISSAL

AND/OR AFFIRMANCE

The appellees file this their Rule 16 motion to dismiss

and/or affirm upon the following separate, distinct and

alternative grounds:

1. The subject appeal is not within the jurisdiction

of this Court because it was not taken in conformity to

statute or applicable Supreme Court Rules.

2. The appeal does not present a substantial federal

question.

3. The purported federal question raised was not

timely or properly raised in the state court of final appel-

late jurisdiction.

4. The purported federal question raised was not ex-

pressly decided by the state appellate court/courts of final

appellate jurisdiction.

5. The judgment appealed rests on an adequate non-

federal basis.

3

Ill.

OPINIONS BELOW

The following pertinent orders, decisions and opinions

have been rendered in the premises by the Florida courts:

1. On March 12, 1974, the Circuit Court for Monroe

County, Florida, entered a final declaratory judgment hold-

ing that COMMISSIONERS’ authorization of a television

translator system was not an unconstitutional legislative

impairment of obligations of the existing exclusive fran-

chise for cable television granted CABLE-VISION. (A 1-4)

CABLE-VISION bypassed the District Court of Appeal,

Third District, of Florida, and took a direct appeal to the

Supreme Court of Florida.

2. On October 2, 1974, the Supreme Court of Flor-

ida—on motion of COMMISSIONERS—entered its order

transferring CABLE-VISION’S appeal to the District Court

of Appeal, Third District, holding that said court, and not

the Supreme Court, had appellate jurisdiction over the

matter. (AA 1)

3. On December 9, 1975, the District Court of Appeal

entered a decision and opinion affirming the declaratory

judgment in part and reversing in part. This decision is

reported at 324 So. 2d 149. (A 5-17) CABLE-VISION

appealed said decision to the Supreme Court of Florida.

CABLE-VISION did not file a timely petition for writ of

certiorari.

4. On May 27, 1976, the Supreme Court entered an

order granting COMMISSIONERS’ motion to dismiss the

appeal. (A 18)

5. On July 8, 1976, the Supreme Court of Florida

entered an order denying CABLE-VISION’S motion to

treat its previously filed notice of appeal as a petition for

writ of certiorari. (A 19)

4

IV.

NO JURISDICTIONAL GROUNDS

COMMISSIONERS reject the statement of jurisdic-

tional grounds contained in CABLE-VISION’S jurisdic-

tional statement as improper and incorreci. The reasons

why this Court is without jurisdiction and/or should re-

frain from exercising jurisdiction over this matter are de-

tailed below.

V.

STATUTES AND ORDINANCE INVOLVED

The statutes and ordinance involved here are: Chap-

ter 65-1916, Laws of Florida (A 29-35); Chapter 65-1927,

Laws of Florida (A 35-44); and Ordinance 5-1973 of Mon-

roe County, Florida. (A 25-29)

VI.

QUESTION PRESENTED

The question presented by CABLE-VISION’S juris-

dictional statement and COMMISSIONERS’ motion to dis-

miss and/or affirm is whether or not this Court is without

jurisdiction and/or should refrain from exercising juris-

diction over the subject appeal on one or more of the

following grounds:

1. The subject appeai is not within the jurisdiction

of this Court because it was not taken in conformity to

statute or applicable Supreme Court Rules,

2. The appeal does not present a substantial federal

question.

)

3. The purported federal question raised was not

timely or properly raised in the state court of final appel-

late jurisdiction.

4. The purported federal question raised was not ex-

pressly decided by the state appellate court/courts of final

appellate jurisdiction.

5. The judgment appealed rests on an adequate non-

federal basis.

Vil.

STATEMENT OF CASE

Sans the editorialized and merits argumentative, COM-

MISSIONERS accept the statement of case contained at

pages 4-7 of CABLE-VISION’S jurisdictional statement as

basically correct insofar as it goes. For the sake of com-

pleteness, however, COMMISSIONERS are constrained to

include herein the following chronology of legal events:

1. March 12, 1974—the trial court entered final de-

claratory judgment in the within cause which, in pertinent

part, provides:

“4. That the plaintiff notwithstanding the exis-

tence of a valid franchise may itself engage in the

business of furnishing television to its citizens by

means of television broadcast translator stations. It

should be noted that in 1972 the Home Rule Amend-

ment to the State Constitution granted broad powers

to counties, including Monroe, to enact ordinances

similar to Ordinance 5-1973 relating to the establish-

ment of translator stations and that such Ordinance is

within the ambit of the Home Rule Amendment.

6

“This Court does not construe the franchise agree-

ment to prohibit the plaintiff from furnishing to the

citizens of Monroe County television broadcast trans-

lator station services. This is based upon the principle

that exclusive franchises from a governmental body to

a private corporation must be strictly construed. The

franchise here provides for ‘direct wire reception of

television’ and is silent as to the possible use of trans-

lator stations.

“The actions of the plaintiff in authorizing a

translator system was not a legislative impairment of

an existing contract between the defendant and the

plaintiff so as to render the authorizing ordinance re-

lating to translator stations unconstitutional. Neither

Chapter 65-1916 nor Chapter 65-1927 prohibit the

plaintiff from engaging in activities which might im-

pair the quality of or the value of the defendant’s

franchise but only prohibit the plaintiff from granting

new or additional franchises to others. Although there

may be the suggestion that implicit in the two chapters

is a provision that the plaintiff will not compete, never-

theless such suggestion ignores the well-established

principle that public grants are strictly construed and

that nothing should pass to the grantee of such a fran-

chise by implication. The reason behind this rule of

construction is that the object and end of all govern-

ment is to promote the common interests of the people,

their recreation, welfare and prosperity and it is never

assumed that the governmental authority intended to

diminish this power. Governments should never be

presumed to surrender this power because the entire

community has an interest in preserving it undimin-

ished. The Statutes (Chapter 65-1916 and Chapter

65-1927), the existing ordinance 5-1973 and the fran-

7

chise agreement disclose that what was given to the

defendant was not an exclusive franchise to furnish

all forms of television reception but rather it was an

exclusive right to furnish cable television services

only.” (A 3-4)

2. April 8, 1974—CABLE-VISION bypassed the Dis-

trict Court of Appeal, Third District of Florida, and took

a direct appeal from the Circuit Court’s final declaratory

judgment to the Supreme Court of Florida. (AA 3-4)

3. June 20, 1974—COMMISSIONERS filed a motion

with the Supreme Court of Florida to dismiss or transfer

the appeal taken by COMMISSIONERS on grounds that—

pursuant to the provisions of the Florida Constitution and

appellate rules—the Florida Supreme Court did not have

jurisdiction over an appeal merely passing on the validity

of a county ordinance, such jurisdiction being vested in the

appropriate District Court of Appeal. (AA 5-6)

4. October 2, 1974—the Supreme Court of Florida en-

tered an order granting COMMISSIONERS’ motion to

transfer, and transferring the subject appeal to the District

Court of Appeal, Third District. (AA 1)

5. December 9, 1975—the District Court of Appeal,

Third District, entered a decision affirming in part and

reversing in part and specifically holding that the CABLE-

VISION franchise was not exclusive, and that the subject

county ordinance was proper on grounds similar to those

relied upon by the Circuit Court. (A 5-17) Pursuant to

the provisions of the Florida Appellate Rules, the District

Court’s decision was rendered on January 22, 1976, upon

denial of CABLE-VISION’S timely filed petition for re-

hearing, and CABLE-VISION had until thirty (30) days

thereafter, February 21, 1976, in which to commence ap-

8

propriate further proceedings in the Supreme Court of

Florida, to wit: to commence an appeal or file a petition

for writ of certiorari with the Supreme Court of Florida.

6. February 20, 1976-—CABLE-VISION filed a notice

of appeal seeking review of the decision rendered by the

District Court of Appeal. (AA 7-8)

7. April 14, 1976-—COMMISSIONERS filed with the

Supreme Court of Florida a moiion to dismiss CABLE-

VISION’S appeal from the District Court decision on

grounds that the Supreme Court was without jurisdiction

over the matter since the District Court decision passed on

the validity of a county ordinance and not on the validity

of a State Statute or Federal Statute or Treaty. (AA 9-10)

8. May 27, 1976—the Supreme Court of Florida

entered its order granting COMMISSIONERS’ motion and

dismissing CABLE-VISION’S appeal to the Supreme Court

from the decision rendered by the District Court on juris-

dictional grounds. (AA 11)

9. June 1, 1976-—CABLE-VISION filed with the Su-

preme Court of Florida a petition—under the aegis of Sec-

tion 59.45, Florida Statutes—asking that Court to treat its

erroneously filed notice of appeal as a petition for writ of

certiorari. (AA 12-14)

10. July 8, 1976—the Supreme Court of Florida

entered its order denying CABLE-VISION’S motion to

treat the erroneously filed notice of appeal as a petition for

writ of certiorari.

Ultimately, CABLE-VISION commenced the within

proceedings in this Court. _

VIII.

ARGUMENT—MOTION TO DISMISS OR AFFIRM

SHOULD BE GRANTED

Article V, Section 3(b), Florida Constitution, relating

to Supreme Court jurisdiction provides:

> . *

“(b) Jurisdiction. The supreme court:

“(1) Shall hear appeals from final judgments of

trial courts imposing the death penalty and from

orders of trial courts and decisions of district courts of

appeal initially and directly passing on the validity of

a state statute or a federal statute or treaty, or constru-

ing a provision of the state or federal constitution.

“(2) When provided by general law, shall hear

appeals from final judgments and orders of trial courts

imposing life imprisonment or final judgments entered

in proceedings for the validation of bonds or“ ¢ertifi-

cates of indebtedness.

“(3) May review by certiorari any decision of a

district court of appeal that affects a class of constitu-

tional or state officers, that passes upon a question cer-

tified by a district court of appeal to be of great public

interest, or that is in direct conflict with a decision of

any district court of appeal or of the supreme court on

the same question of law, and any interlocutory order

passing upon a matter which upon final judgment

would be directly appealable to the supreme court; and

may issue writs of certiorari to commissions estab-

lished by genera. law having statewide jurisdiction.

“(4) May issue writs of prohibition to courts and

commissions in causes within the jurisdiction of the

10

supreme court to review, and all writs necessary to the

complete exercise of its jurisdiction.

“(5) May issue writs of mandamus and quo

warranto to state officers and state agencies.

“(6) May, or any justice may, issue writs of

habeas corpus returnable before the supreme court or

any justice, a district court of appeal or any judge

thereof, or any circuit judge.

“(7) Shall have the power of direct review of

administrative action prescribed by general law.”

Article V, Section 4(b), Florida Constitution, relating

to District Court of Appeal jurisdiction, provides:

“(b) Jurisdiction.

“(1) District courts of appeal shall have jurisdic-

tion to hear appeals, that may be taken as a matter of

right, from final judgments or orders of trial courts,

including those entered on review of administrative

action, not directly appealable to the supreme court or

a circuit court. They may review interlocutory orders

in such cases to the extent provided by rules adopted

by the supreme court.

“(2) District courts of appeal shall have the

power of direct review of administrative action, as pre-

scribed by general law.

“(3) A district court of appeal or any judge

thereof may issue writs of habeas corpus returnable

before the court or any judge thereof or before any

circuit judge within the territorial jurisdiction of the

court. A district court of appeal may issue writs of

11

mandamus, certiorari prohibition, quo warranto, and

other writs necessary to the complete exercise of its

jurisdiction. To the extent necessary to dispose of all

issues in a cause properly before it, a district court of

appeal may exercise any of the appellate jurisdiction

of the circuit courts.”

Manifestiy, Florida has a two-tier appellate court sys-

tem. The Florida District Courts of Appeal were not

established as intermediate courts or more way stations to

the Supreme Court, but as courts of final appellate jurisdic-

tion. When the people of Florida adopted the amendment

to Article V of the Florida Constitution, establishing the

District Courts of Appeal, they were assured that most liti-

gation in the state would not go beyond those courts. A

narrow scope of jurisdiction of the Supreme Court was spe-

cified in Article V of the Constitution, and the Article has

been so applied and construed by that Court. See Short v.

Grossman, Fla. 1971, 245 So. 2d 217. As recently stated by

Justice England in his concurring opinion in Golden Loaf

Bakery, Inc. v. Charles W. Rex Construction Co., Fla. 1976,

334 So. 2d 585:

* * >

“This court’s conflict jurisdiction was created in

1957, at the same time the legislature established the

District Courts of Appeal. The obvious and limited

purpose of that form of appellate review was to allow

us to clarify the law when it becomes necessary under

the new court structure created by the Constitution.

Where our views on a matter of law are not absolutely

necessary, we should not express them. Moreover, the

constitutional rule of our District Courts as courts of

last resort is unnecessarily diminished to the extent we

use this discretionary jurisdictional tool to express our-

12

selves in situations which do not require our clarifica-

tion.”

> ~ *

In sum, the Florida Supreme Court for the most part

exercises discretionary direct conflict jurisdiction, and will

only—indeed, may constitutionally only—take jurisdiction

of a direct appeal under very limited circumstances. It

does have jurisdiction of a District Court decision “initially

and directly passing on the validity of a state statute or a

federal] statute or treaty.” It does not have jurisdiction of a

District Court decision which merely passes on the validity

of a county ordinance.

Reverting to the case at Bar, for the reasons which

follow, this Court should grant the subject motion for dis-

missal and/or affirmance:

1. The declaratory judgment appealed passed only on

the validity of a county ordinance. Thus, the Supreme

Court of Florida did not have jurisdiction over the initial

direct arpeal filed by CABLE-VISION, and properly trans-

ferred the initial appeal to the District Court of Appeal,

Third District.

2. The decision rendered by the District Court of Ap-

peal, Third District, passed only upon the validity of a

county ordinance. The District Court—constitutionally—

was thus, in the absence of a showing of the existence of

Florida Supreme Court direct conflict jurisdiction, the

state court of final appel'ate jurisdiction which disposed

of this matter. If CABLE-VISION desired to appeal to

this Court from the District Court of Appeal decision, it

should have done so immediaiely and timely. CABLE-

VISION did not immediately and timely file such an appeal.

3. Instead, CABLE-VISION commenced an obviously

improper direct appeal to the Supreme Court of Florida.

13

The Supreme Court obviously had no jurisdiction because

the decision sought to be reviewed merely passed upon the

validity of a county ordinance. The Supreme Court of

Florida, therefore, properly granted COMMISSIONERS’

motion to dismiss the improper appeal. The Supreme Court

of Florida’s order of dismissal was no more and no less

than a technically proper dismissal of an appeal improvi-

dently taken. That order in no sense constitutes the type

of opinion, decision or judgment which may be appealed

to this Court since it did not pass on any legal question

save the jurisdictional question.

4. Subsequent to the entry of the order of dismissal

by the Supreme Court of Florida, CABLE-VISION filed

a petition to consider the notice of appeal as a petition

for writ of certiorari. This without any showing of the

existence of direct conflict, or even the attempt to make

such a showing. In the abstract, there was no direct

conflict. The Supreme Court of Florida properly on juris-

dictional grounds denied CABLE-VISION’S petition. The

order of denial in no sense constituted the type of opinion,

decision or judgment which can be appealed to this Court.

5. Entirely aside and apart from the foregoing, it is

manifest that the subject appeal does not present a sub-

stantial federal question, and/or the purported federal ques-

tion raised was not expressly decided by the Supreme Court

of Florida, and/or the Supreme Court order appealed rests

on adequate non-federal bases. Indeed, this record reflects

that the same is true of the District Court of Appeal de-

cision which should have been appealed to this Court in

the first instance.

The following decisions of this Court mandate dismis-

sal and/or affirmance on a record such as this: Randall

v. Board of Commissioners of Tippecanoe County, Indiana,

261 U.S. 252, 67 L. Ed. 637, 1923; Williams v. State of Florida,

14

399 U.S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 446, 1970; and

Michigan-Wisconsin Pipeline Co. y. Calvert, 347 U.S. 157,

74S. Ct. 396, 98 L. Ed. 583, 1953.

IX.

CONCLUSION

In view of the foregoing, it is respectfully submitted

that the subject motion to dismiss and/or affirm must be

granted.

Respectfully submitted,

Pau. E. Sawyer, Esa.

County Attorney for Monroe County

P. O. Box 571

Key West, Florida 33040

and

Horton, Perse & GINSBERG

410 Concord Building

Miami, Florida 33130

Attorneys for Appellees

By: Epwarp A. PERSE

CERTIFICATE OF COUNSEL

I, EDWARD A. PERSE, one of the attorneys for THE

BOARD OF COUNTY COMMISSIONERS OF MONROE

COUNTY, et al., appellees herein, and a member of the

Bar of the Supreme Court of the United States, hereby

certify that on the 24 day of November, 1976, I served

copies of the foregoing Rule 16 Motion to Dismiss and/or

Affirm on the several parties thereto as follows:

15

1. On Cable-Vision, Inc., a Florida corporation, and

Tele-Media Company of Key West, its successor in interest,

by mailing a copy in a duly addressed envelope, with first

class postage prepaid, to its attorneys of record as follows:

Julius F. Parker, Jr., Esq.

Madigan, Parker, Gatlin, Truett

& Swedmark

P. O. Box 669

318 North Monroe Street

Tallahassee, Florida 32302

Michael G. Kushnick, Esq.

Rose and Kushnick

919 Eighteenth Street, N. W.

Washington, D. C. 20006

EDWARD A. PERSE

Horton, Perse & GINSBERG

410 Concord Building

Miami, Florida 33130

Attorneys for Appellees

. SS eee

AAI

“i APPENDIX

IN THE SUPREME COURT OF FLORIDA

Case No. 45,402

July Term, A. D. 1974

Wednesday, October 2, 1974

CABLE-VISION, INC., a

Florida corporation,

Appellant,

vs.

WILLIAM A. FREEDMAN, JR.,

ET AL..,

Appellees.

Upon consideration of appellees’ Motion to Dismiss or

Transfer and Response thereto:

It appearing to the Court that the issues involved in

the appeal in the above cause are matters within the juris-

diction of the District Court of Appeal, Third District of

Florida, therefore, pursuant to the provisions of Florida

Appellate Rules, it is ordered that said cause be transferred

to said District Court for consideration and determination

after five (5) days from this date unless, in the meantime,

attorneys of record for the parties, or any of them shall

bring to the attention of the Court that the cause is one

which should be heard and determined by this Ccurt.

Unless such cause is shown by writing filed in this Court

within the time stated, the Clerk shall complete the trans-

fer in accord with the above directive without further

order. )

AA2

ADKINS, C. J., ROBERTS, ERVIN, BOYD and McCAIN,

JJ., concur

Y

CC: Hon. W. P. Carter, Clerk

Hon. Ralph W. White, Clerk

Hon. James W. Kehoe, Judge

Horton & Perse

(Hon. Mallory H. Horton)

Hon. Paul E. Sawyer

Hon. Julius F. Parker, Jr.,

Hon. Tom Harris

AA3

IN THE CIRCUIT COURT OF THE SIXTEENTH

JUDICIAL CIRCUIT IN AND FOR MONROE

COUNTY, FLORIDA.

Case No. 73-786-CA-17

WILLIAM A. FREEMAN, JR., BARRY S. PRITCHARD,

JOHN W. PARKER, HARRY HARRIS and WILLIAM

CARTER, as and constituting THE BOARD OF COUNTY

COMMISSIONERS OF MONROE COUNTY, a political

subdivision of the State of Florida,

Plaintiffs,

vs.

CABLE-VISION, INC., a Florida corporation, and THE

STATE OF FLORIDA,

Defendants.

NOTICE OF APPEAL

The Defendant, Cable-Vision, Inc., a Florida corpora-

tion, takes and enters its appeal to the Supreme Court of

Florida to review the order, judgment or decree of the Cir-

cuit Court of the Sixteenth Judicial Circuit in and for

Monroe County, Florida, bearing date the 12th day of

March, 1974, and rendered and recorded in O. R. Book 572,

Pages 528-531, on March 25, 1974, in the Public Records of

Monroe County, Florida. The nature of the Order appealed

from is a Final Declaratory Judgment passing directly on

the constitutionality of a state statute in the form of a

County Ordinance of Monroe County, No. 5-1973. The

Ordinance was attacked as an unconstitutional impair-

ment of existing contractual rights and obligations and the

Court held:

“The actions of the Plaintiff in authorizing a translator

system was not a legislative impairment of an existing

AA4

contract between the defendant and the plaintiff so as

to render the authorizing ordinance relating to trans-

lator stations unconstitutional.”

Appeal is taken directly to the Supreme Court of

Florida under the provisions of Rule 2.1 a (5) (a) of the

Florida Appellate Rules.

All parties to said cause are called upon to take notice

of the entry of this appeal.

/s/ Julius F. Parker, Jr.

Julius F. Parker, Jr.

Madigan, Parker, Gatlin, Truett &

Swedmark

P. O. Box 669—318 N Monroe Street

Tallahassee, Florida 32302

Attorneys for Defendant, Cable-

Vision, Inc., a Florida corpora-

tion.

I HEREBY CERTIFY that a copy of the foregoing

Notice of Appeal has been furnished to Mallory Horton,

Esquire, of Horton and Perse, 410 Concord Building, Miami,

Florida 33130, and Paul E. Sawyer, Esquire, County Attor-

ney for Monroe County, P. O. Box 571, Key West, Florida

33040, Attorneys for Plaintiffs, and to Tom Harris, Esquire,

Assistant Attorney General, Capitol Building, Tallahassee,

Florida, 32304, by mail, this 8th day of April, 1974.

/s/ Julius F. Parker, Jr.

Julius F. Parker, Jr.

AA5

IN THE

SUPREME COURT OF THE STATE OF FLORIDA

Case No. 45,402

CABLE-VISION, INC., a Florida corporation,

Appellant,

Vs .

WILLIAM A. FREEMAN, JR., HARRY S. PRITCHARD,

JOHN W. PARKER, HARRY HARRIS and WILLIAM

CARTER, as and constituting THE BOARD OF COUNTY

COMMISSIONERS OF MONROE COUNTY, a political

subdivision of the State of Florida,

Appellees.

MOTION TO DISMISS OR TRANSFER

COME NOW the Appellees, by their attorneys, and

move the Court to dismiss this appeal and/or to transfer

the same to the District Court of Appeal, Third District of

Florida. As grounds for this motion these Appellees would

show that the Appellant in its brief, page 4, states as

follows:

“Because of this direct ruling on the constitutionality

of Ordinance No. 5-1973, this appeal was taken directly

to the Supreme Court of Florida under the provisions

of Rule 2.1 a (5) (a) of the Florida Appellate Rules.”

Article V, Section 3 of the Florida Constitution, 1968

Revision, Subsection (b) (1) provides as follows:

“(b) Jurisdiction. The supreme court:

(1) Shall hear appeals from final judgments of trial

courts imposing the death penalty and from orders of

trial courts and decisions of district courts of appeal

initially and directly passing on the validity of a state

statute or a federal statute or treaty, or construing a

provision of the state or federal constitution.” (Em-

phasis supplied )

AA6

Rule 2.1 a (5) (a) of the Florida Appellate Rules is simply

a restatement of the constitutional provisions cited above.

By the Appellant’s own admission only an ordinance of

Monroe County has been passed upon by the Circuit Court.

County ordinances are no different than municipal ordi-

nances and this Court is DRESNER v. CITY OF TALLA-

HASSEE, Fla. 1961, 134 So.2d 228, held that a direct appeal

would not lie from a decision passing on the validity of a

municipal ordinance. In effect, holding that a municipal

ordinance could not be classified as a “state statute” to the

same effect is ARMSTRONG, et al v. CITY OF TAMPA,

Fla. 1958, 106 So.2d 407.

WHEREFORE, these Appellees respectfully pray that

this Court will dismiss this appeal or in the alternative

transfer this appeal to the appropriate court, to-wit: the

District Court of Appeal, Third District of Florida.

Horton & Perse

410 Concord Building

Miami, FL 33130

and

Paul E. Sawyer, Esquire

Post Office Box 571

Key West, FL 33040

Attorneys for Appellees

By: Mallory H. Horton

Mallory H. Horton

I HEREBY CERTIFY that a true copy of the foregoing

Motion to Dismiss or Transfer has been furnished by mail

to Julius F. Parker, Jr., Esquire, Post Office Box 669,

Tallahassee, FL 32302, Attorney for Appellant, and to Tom

Harris, Esquire, Assistant Attorney General, Department

of Legal Affairs, Civil Division, 222 West Pensacola Street,

Tallahassee, FL 32304, this 20th day of June, 1974.

By: Mallory H. Horton

Mallory H. Horton

AAT

IN THE

DISTRICT COURT OF APPEAL FOR THE

THIRD DISTRICT OF FLORIDA

Case No. 74-1408

CABLE-VISION, INC., a Florida corporation,

Appellant,

vs.

WILLIAM A. FREEMAN, JR., HARRY S. PRITCHARD,

JOHN W. PARKER, HARRY HARRIS and WILLIAM

CARTER, as and constituting THE BOARD OF COUNTY

COMMISSIONERS OF MONROE COUNTY, a political

subdivision of the State of Florida,

Appellees.

NOTICE OF APPEAL

Cable-Vision, Inc., Defendant-Appellant, takes and en-

ters its appeal to the Supreme Court of Florida to review

the opinion of the District Court of Appeal of Florida,

Third District, dated December 9, 1975, and revised upon

rehearing and dated January 22, 1976. The nature of the

Order appealed from is an Opinion affirming in part and

reversing in part a final judgment of the Circuit Court for

Monroe County, Florida. All parties to said cause are

called upon to take notice of the entry of this appeal.

/s/ Julius F. Parker, Jr.

Julius F. Parker, Jr.

’ /s/ Jack M. Skelding, Jr.

Jack M. Skelding, Jr.

Madigan, Parker, Gatlin, Truett

& Swedmark

P. O. Box 669-318 N. Monroe St.

Tallahassee, FL 32302

Attorneys for Cable-Vision, Inc.

AA8

CERTIFICATE

I HEREBY CERTIFY that a copy of the foregoing

Notice of Appeal has been furnished by United States Mail

to Mr. Mallory H. Horton, Horton, Perse & Ginsberg, 410

Concord Bldg., Miami, FL 33130; Mr. Paul E. Sawyer,

County Attorney for Monroe County, P. O. Box 571, Key

West, FL 33040 and Mr. Tom Harris, Assistant Attorney

General, Department of Legal Affairs, Civil Division, 222

West Pensacola Street, Tallahassee, FL 32304, this 20th

day of February, 1976.

/s/ Jack M. Skelding, Jr.

AAS

IN THE SUPREME COURT OF FLORIDA

Case No. 48,962

CABLE-VISION, INC., a Florida corporation,

Appellant,

vs.

WILLIAM A. FREEMAN, JR., HARRY S. PRITCHARD,

JOHN W. PARKER, HARRY HARRIS, and WILLIAM

CARTER, as and constituting THE BOARD OF COUNTY

COMMISSIONERS OF MONROE COUNTY, a political

subdivision of the State of Florida,

Appellees.

MOTION TO DISMISS

COME NOW the appellees by their attorneys and

show to the Court that the appellant has taken a full or

plenary appeal to this Court from the opinion and decision

of the District Court of Appeal filed December 9, 1975 and

has asserted certain Assignments of Error directed to said

opinion.

The appellees move the Court to dismiss the appeal on

the grounds that the Court’s jurisdiction is improperly in-

voked. The District Court in its opinion and decision filed

December 9, 1975, a copy of which is attached hereto as

modified by its Order of January 22, 1976 a copy of which

latter Order is also attached as an exhibit to this motion,

clearly demonstrates that the District Court of Appeal did

not initially and directly pass on the validity of a State’s

Statute or a Federal Statute or treaty or construe a pro-

vision of the State or Federal Constitution. Appellant’s

Assignment of Error Number 9 erroneously concludes that

the District Court of Appeal held invalid Chapter 65-1916

Laws of Florida but appellees respectfully suggest that a

fair reading of the District Court of Appeal’s opinion of

AA10

December 9, 1975 will adequatley demonstrate that Court

did not initially pass on the validity of Chapter 65-1916

Laws of Florida, nor did it hold said law invalid. As a

matter of fact the District Court of Appeal did not pass

upon the validity of that Statute but simply held that since

Chapter 65-1916 and 65-1927 were passed at the same

session of the Legislature the last enactment was controlling

and therefore the Legislature had not granted to CABLE-

VISION an exclusive franchise.

WHEREFORE, the appellees respectfully pray that

this Court will, upon consideration of the opinion and

decision of the District Court of Appeal of December 9,

1975 dismiss this appeal.

Respectfully submitted,

Paul E. Sawyer

and

Horton, Perse & Ginsberg

410 Concord Building

Miami, Florida 33130

Attorneys for Appellees

By /s/ Mallory H. Horton

Mallory H. Horton

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing

was mailed to Madigan, Parker, Gatlin, Truett & Swed-

mark, P. O. Box 669, 318 N. Monroe Street, Tallahassee,

Florida 32302 and to Tom Harris, Assistant Attorney Gen-

eral, Capitol Building, Tallahassee, Florida 32304 this 14

day of April, 1976.

/s/ Mallory H. Horton

Mallory H. Horton

AAII1

IN THE SUPREME COURT OF FLORIDA

District Court of Appeal, Third District 74-1408

Case No. 48,962

January Term, 1976

Thursday, May 27, 1976

CABLE-VISION, INC., ETC.,

Appellant,

vs.

WILLIAM A. FREEMAN, JR., ET AL., as and constituting

THE BOARD OF COUNTY COMMISSIONERS OF

MONROE COUNTY, ETC.,

Appellees.

Upon consideration of the Motion to Dismiss filed by

attorneys for appellees and Response thereto, it is ordered

that said motion is granted and this appeal be and is hereby

dismissed.

OVERTON, C.J., ROBERTS, ADKINS, SUNDBERG AND

HATCHETT, JJ., CONCUR

Y

CC: Hon. W. P. Carter, Clerk

Hon. Ralph W. White, Clerk

Hon. James Kehoe, Judge

Hon. Julius F. Parker, Jr.

Hon. Jack M. Skelding, Jr.

Hon. Paul E. Sawyer, Hon.

Mallory H. Horton

Hon. Paul Sawyer

Hon. Tom Harris

AA12

IN THE SUPREME COURT OF FLORIDA

Case No. 48,962

CABLE-VISION, INC., a Florida corporation,

Appellant,

vs.

WILLIAM A. FREEMAN, JR.; HARRY S. PRITCHARD;

JOHN W. PARKER; HARRY HARRIS, and WILLIAM

CARTER, as and constituting THE BOARD OF COUNTY

COMMISSIONERS OF MONROE COUNTY, a political

subdivision of the State of Florida,

Appellees.

PETITION UNDER FLORIDA STATUTES,

SECTION 59.45

The Appellant, Cable-Vision, Inc., by its undersigned

counsel, respectfully petitions the Court, pursuant to the

provisions of Florida Statutes, Section 59.45, to treat the

appeal filed herein as a Petition for Certiorari, to allow

Cable-Vision, Inc. thirty days within which to file a formal

Petition for Certiorari with supporting jurisdictional brief,

and in support thereof would show the Court:

1. The Notice of Appeal was filed herein by Cable-

Vision, Inc. on February 20, 1976. Cable-Vision’s brief

would, therefore, have been due in the Supreme Court of

Florida on April 30, 1976. The Appellee’s Motion to Dis-

miss the appeal was filed on April 14, 1976, and Cable-

Vision’s response to the Motion to Dismiss on April 21,

1976. The Court’s Order of Dismissal is dated May 27,

1976, and does not make any reference whatsoever to

Cable-Vision, Inc.’s request in its response to the Motion

to Dismiss that the appeal be treated as Certiorari, pur-

suant to Section 59.45, Florida Statutes.

AA13

2. Cable-Vision, Inc. represents to the Court that it

believes that there are at least ten decisions of the Su-

preme Court of Florida with which the decision of the

District Court of Appeal for the Third District herein is

in direct conflict so that this Court should review this case

by certiorari. Since Cable-Vision, Inc. believed that it

had the right to appeal to this Court, it has not had the

opportunity to present what it believes to be direct con-

flicts, nor has this Court has the opportunity to consider

whether it does in fact have jurisdiction under conflict

certiorari.

3. Cable-Vision, Inc. is prepared to file with this Court

within thirty days from its decision herein, a formal Pe-

tition for Certiorari with supporting jurisdictional brief.

4. The provisions of Section 59.45, Florida Statutes,

clearly set forth the policy that the right to appellate review

should not be denied merely because a litigant mistakenly

styles its application to an appellate court as an appeal

rather than a Petition for Certiorari, and this Court should

not deny to Cable-Vision, Inc. its right at least to seek con-

flict certiorari in the Supreme Court.

WHEREFORE, Petitioner, Cable-Vision, Inc., respect-

fully petitions the Court to treat the appeal herein as a

Petition for Certiorari, to allow thirty days within which

for Cable-Vision to file a Petition for Certiorari and sup-

porting jurisdictional brief.

Respectfully submitted,

/s/ Julius F. Parker, Jr.

Julius F. Parker, Jr.

Madigan, Parker, Gatlin, Truett

& Swedmark

P. O. Box 669—318 N. Monroe

Street

Tallahassee, Florida 32302

Attorneys for Appellant

AAI4

I HEREBY CERTIFY that a copy hereof has been

furnished to Mr. Mallory H. Horton, Morton, Perse and

Ginsberg, 410 Concord Building, Miami, Florida 33130; Mr.

Paul Sawyer, County Attorney for Monroe County, P. O.

Box 571, Key West, Florida 33040; and to Mr. Tom Harris,

Assistant Attorney General, Department of Legal Affairs,

Civil Division, 222 W. Pensacola St., Tallahassee, Florida

32304; by mail, this lst day of June, A. D. 1976.

/s/ Julius F. Parker, Jr.

Julius F, Parker, Jr.

AAI5

IN THE SUPREME COURT OF FLORIDA

Case No. 48,962

July Term, 1976

Thursday, July 8, 1976

CABLE-VISION, INC., ETC.,

Appellant,

vs.

WILLIAM A, FREEMAN, JR., ET AL., as ond constituting

THE BOARD OF COUNTY COMMISSIONERS OF

MONROE COUNTY, ETC.,

Appellees.

On consideration of the Petition Under Florida Stat-

utes, Section 59.45 filed by attorneys for appellant and

Response thereta,

IT IS ORDERED that said petition is denied.

Y

CC: Hon. W. P. Carter, Clerk

Hon. Ralph W. White, Clerk

Hon. James Kehoe, Judge

Hon. Julius F. Parker, Jr.,

Hon. Jack M. Skelding, Jr.

Hon. Mallory H. Horton,

Hon. Paul E. Sawyer

Hon. Paul E. Sawyer

Hon. Tom Harris