Opposition Brief — Redner v. City of Tampa

Sumreme Court, U.S |

ili .

a FILED |

\ |

a OCT 28 1997

No. 97-608

CLERK

In The

Supreme Court of the United States

~~

October Term, 1997

JOSEPH RICHARD REDNER,

Petitioner,

VS.

THE CITY OF TAMPA, FLORIDA, a Florida Municipal

Corporation, and PAM IORIO, in her official capacity as

Supervisor of Elections, Hillsborough County, Florida,

Respondents.

On Petition for a Writ of Certiorari to the

District Court of Appeal of Florida, Second District

RESPONDENTS’ BRIEF IN OPPOSITION

JERRY M. GEWIRTZ

Assistant City Attorney

Attorney for Respondents

315 East Kennedy Boulevard

Fifth Floor, City Hall

Tampa, Florida 33602

(813) 274-8996

72288 gut

(800) 3 APPEAL « (800) 5 APPEAL « (800) BRIEF 21 ‘Apoeliate ;

Senices, inc.

QUESTIONS PRESENTED

Respondents, City of Tampa, Florida and Pam

lorio, in her official capacity as Supervisor of Elections,

Hillsborough County, Florida, respectfully restate the

questions presented as follows:

3 WHETHER THE IMPOSITION OF A ONE-YEAR

ELECTOR REQUIREMENT IS

CONSTITUTIONAL.

II. WHETHER UNDER THE FACTS OF THIS CASE

THERE WAS A NEED FOR AN EVIDENTIARY

HEARING.

PARTIES PR NGS BELOW

Plaintiff:

Defendants:

Joseph Richard Redner.

City of Tampa, Florida and Pam Iorio, in

her official capacity as Supervisor of

Elections, Hillsborough County, Florida.

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TABLE OF CONTENTS

PAGE

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PARTIES TO THE PROCEEDINGS BELOW ..... li

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Pasenmeeeen Ge EU CASE 2... ww we ee ee l

REASONS FOR DENYING THE WRIT ........ 5

POINT I: THE IMPOSITION OF A ONE

YEAR ELECTOR REQUIREMENT IS

NOT UNCONSTITUTIONAL. ......... 5

POINT II: UNDER THE FACTS OF THIS

CASE, THERE WAS NO NEED FOR AN

EVeMPEUEGPGMRE BOEAEIWO. 2... ..5.4-. 7

tag hee yw oasis ew: Sloe 9

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TABLE OF AUTHORITIES

CASES CITED: PAGE

Board of Commissioners of Sarasota v.

Gustafson, 616 So.2d 1165

i, Be kos ee ae a err 5,6

Cafe 207, Inc. v. St. Johns County

856 F.Supp. 641 (M.D. Fla. 1994) ........... 8

City of Long Beach Resort v. Collins,

pe Le > ) a 7

Daves v. City of Longwood, 423 F.Supp. 593

1 ee, CR Pee eee eee eee eee 7

Federal Communications Commission v.

Beach Communications, Inc.

508 U.S. 307, 113 S.Ct. 2096, 124 L.Ed.2d

ee CO 6 oes ed ee ee ace 8

Heller v. Doe, 309°U.S. 312, 113 S.Ct.

Bast, Lao tne Oe Bt CROP) ww ee wee ee hws 8

Marina v. Leahy, 578 So.2d 382

Cs. Se I cg gal gs dow yay yee a 7

Nichols v. State, 177 So.2d 467

og Rt aN Sete. Fo ae a ere ee ere 1,2,4,5,6

Panama City Medical Diagnostic Limited v.

Williams, 13 F.3d 1541 (11th Cir. 1994) ........ 8

iV

Treiman v. Malmquist, 342 So.2d 972

a TT ors Sees Pac

OTHER AUTHORITIES CITED:

Tampa Home Rule Charter §2.02

STATEMENT OF THE CASE

The within action revolves around _ the

constitutionality of the one year elector requirement

imposed under §2.02 of the Tampa City Charter.

On January 17, 1995, Petitioner filed a Complaint

challenging the constitutionality of the one-year elector

requirement imposed under §2.02 of the Tampa City

Charter. On January 19, 1995, a hearing was held before

the Honorable Edward Ward on Petitioner’s Motion for

Temporary Injunction wherein the issue of the

constitutionality of the one-year elector requirement was

addressed at length. On January 20, 1995, Judge Ward

issued a written Order wherein he denied the Petitioner’s

Motion for Temporary Injunction and held that, under the

authority of Nichols v. State, 177 So.2d 467 (Fla. 1965),

a one-year elector requirement is not unreasonable.

(Petitioner’s Appendix "A", page 41.) The court also

incorporated into its Order, by reference, the findings of

the court which were announced from the bench on January

19, 1995. The findings, which were announced from the

bench, were as follows:

The Court does find and it certainly

is not disputed that the Plaintiff-Petitioner,

Mr. Redner, is not or could not satisfy the

City Charter requirement Section 2.02 that

each member of City Council shall have

been a resident and elector of the City for

one year immediately preceding the

commencement of the term of office for

which elected.

The Court finds that the Plaintiff has

not demonstrated irreparable harm. While

l

it may be true that Mr. Redner is or may be

thwarted in his immediate bid for public

office, his position -- if I might borrow now

from some medical vernacular -- can be

likened into that of a temporary infirmity or

acute inadequacy, as opposed to a chronic or

terminal condition or insufficiency.

The Court further finds that the

Plaintiff has not established a clear, legal

right to the relief requested in that there has

not been a demonstration of a substantial

likelihood that the movant would be or is

entitled to relief on the merits.

At this point the Court would cite for

the record the only case on point which was

the Nichols case at 177 So.2d 467 in which

the Supreme Court articulated that a one-

year elector requirement was _ not

unreasonable.

In passing, the Court would note

that the case of Treiman, T-R-E-I-M-A-N,

although intriguing and interesting, certainly

was ably distinguished on the facts from the

case at bar.

The Court further finds that the

public interest at this time would not be

served by granting the injunction. Indeed

the Petitioner does not seek to preserve the

Status quo, but urges this Court to order

affirmative action by the Defendant-

Supervisor, which could conceivably lead to

havoc and chaos and serve to disrupt the

orderly election process.

The citizens of the City of Tampa

have spoken by way of a municipal charter.

And in that instrument, the voters have

articulated and approved a twofold

requirement for those persons-who aspire to

positions of leadership through public office.

The Plaintiff, Mr. Redner, fully

Satisfies one of the conditions precedent, that

is, the residency requirement.

However, through and as a result of

Mr. Redner’s own past volitional acts,

which at the time were adjudged illegal,

does not at this time possess the second

prerequisite for qualifying for public office,

that is, the concomitant provision of a one-

year status as an elector.

Inasmuch as the people of Tampa

have spoken and have firmly in place what

this Court considers reasonable and

legitimate qualifications and requirements

for those persons seeking public office, it is

the decision of this Court to deny the

Plaintiff’s Motion for Temporary Injunction.

The Court reserves on issues of

attorney’s fees and costs.

Petitioner subsequently took an appeal from Judge Ward’s

Order and, on May 12, 1995, the Second District Court of

Appeal issued a per curiam affirmance. (Petitioner’s

Appendix "B", page 44.) !

' The Petitioner’ s Appendix "B" erroneously reflects the

date of this per curiam affirmance as May 12, 1997; in fact,

the per curiam affirmance was issued on May 12, 1995.

On May 2, 1996, oral argument was held before the

Honorable Sam Pendino on the Respondents’ Amended

Motion to Dismiss the underlying Complaint filed by

Petitioner. At the oral argument, the parties once again

addressed the constitutionality of §2.02 of the Tampa City

Charter and, at said argument, Judge Pendino verbally ruled

that he found the one-year elector requirement to be

reasonable. On May 13, 1996, Judge Pendino issued a

written Order granting the Respondents’ Amended Motion to

Dismiss the Complaint (Petitioner’s Appendix "D", page 48)

and, thereafter, Petitioner took another appeal to the Second

District Court of Appeal. On appeal, the issue of the

constitutionality of the one-year elector requirement was once

again addressed at length and, on May 9, 1997, the Second

District Court of Appeal issued a per curiam affirmance

wherein the court cited to the dispositive case of Nichols,

supra, in which the Florida Supreme Court held that a one

year elector requirement is not unreasonable. (Petitioner’s

Appendix "E", page 50.)

REASONS FOR DENYING THE WRIT

The Respondents, City of Tampa, Florida and Pam

lorio, in her official capacity as Supervisor of Elections of

Hillsborough County, Florida, respectfully request that this

Court deny the Petition for Writ of Certiorari submitted by

Petitioner, Joseph R. Redner, for the reasons set forth below.

N OF A ONE YEAR

ELECTOR REQUIREMENT IS NOT

UNCONSTITUTIONAL.

In Nichols v. State, 177 So.2d 467 (Fla. 1965), a case

directly on point, the Supreme Court of Florida expressly held

that it was not unreasonable for a statute to require that the

city commissioners shall have been electors for at least one

year immediately preceding their qualifying for office. Id. at

469. Accordingly, the Florida Supreme Court upheld the

decision of the chancellor which found the statute to be valid.

The Petitioner attempts to extricate himself from the

holding in the Nichols case by principally relying upon two

cases, to wit, Treiman v. Malmquist, 342 So.2d 972 (Fla.

1977) and Board of Commissioners of Sarasota v. Gustafson,

616 So.2d 1165 (Fla. 2d DCA 1993). Each of these cases, as

discussed below, is clearly distinguishable from the matter at

hand.

Treiman is distinguishable from the case sub judice in

the following significant respects. First of all, in Treiman the

Statute at issue required that a candidate for judicial office

have been registered to vote in the last preceding general

election. Under the facts of Treiman, the candidate was

required to have registered to vote more than 20 months

before the candidate qualified to run for office. In the matter

at hand, the duration for the elector requirement is only one

year and, as the Supreme Court of Florida held in _Nichols,

a one year duration for the elector requirement is reasonable.

Secondly, in Treiman the candidate at issue had in fact

registered to vote approximately 20 months before he qualified

to run for office. In the case sub judice, the Petitioner did not

register to vote until only one month before the qualifying

period expired.

Thirdly, Treiman does not overrule Nichols and,

indeed, the two cases can be read in harmony with each other.

Treiman does not state that a restraint on the elective process

is prohibited; to the contrary, Treiman holds that reasonable

controls may be imposed on the election process. 342 So.2d

at 975. In Treiman, the court found that the requirement of

being registered to vote 20 months in advance of the last

preceding general election was unreasonable whereas in

Nichols the court found that a one year elector requirement

was reasonable. Accordingly, these two cases are not

inconsistent.

Finally, Treiman is further distinguishable in that in

Treiman the court stated that this “restriction applies solely to

candidates for judicial office. No such similar restraint was

placed on candidates for any other political office." 342

So.2d at 976. In the case at bar, the provision at issue is even

handed and does not discriminatorily apply to only a single

group of candidates.

The Gustafson case, upon which Petitioner heavily

relies, is also distinguishable in a couple of significant

respects. First and foremost, in Gustafson the provision at

issue dealt with a two year durational residency requirement

rather than the one year elector requirement which is at issue

in the matter at hand. This is a critical difference. Secondly,

in Gustafson, the court indicated that a durational requirement

of less than two years would not necessarily be improper.

Indeed, the court stated:

It is the length of the durational residency

requirement that determines which equal

protection analysis will be applied. Accordingly,

a fundamental right is not considered seriously

infringed so as to require a strict scrutiny analysis

unless the candidate durational residency

requirement is deemed excessive. _Treiman v.

Malmquist, 342 So.2d 972 (Fla. 1977); Marina v.

Leahy, 578 So.2d 382 (Fla. 34 DCA 1991):

Daves v. City of Longwood, 423 F.Supp. 593

(M.D. Fla. 1976). Conversely, a candidate

durational residency requirement that is deemed

reasonable is not considered to seriously infringe

using the traditional equal protection analysis.

616 So.2d at 1167.

POINT Il: UNDER THE FACTS OF THIS CASE,

THERE WAS NO NEED FOR AN EVIDENTIARY

HEARING.

Contrary to Petitioner’s argument, there was no need for

an evidentiary hearing in this case for a few reasons.

First of all, there are no disputed facts. The Petitioner

does not dispute that he failed to satisfy the one year elector

requirement. The only issue which was the subject of the

lower court action was the legal issue of whether the one year

elector requirement, imposed under §2.02 of the Tampa Home

Rule Charter, is constitutional.

Secondly, questions of pure law do not require an

evidentiary hearing. The Florida Supreme Court has itself

affirmed the granting of a motion to dismiss, without an

evidentiary hearing, in adjudicating the merits of a

constitutional issue where there was no disputed issues of fact.

See City of Long Beach Resort -v. Collins, 261 So.2d 498

(Fla. 1972).

Thirdly, and perhaps most significantly, there is no

obligation on the part of the government to produce evidence

to sustain the rationality of a statute or other legislative

enactment. See Heller v. Doe, 309 U.S. 312, 113 S.Ct.

2637, 125 L.Ed. 2d 257 (1993); Federal Communications

Commission v. Beach Communications, Inc., 508 U.S. 307,

113 S.Ct. 2096, 124 L.Ed. 2d 211 (1993); Panama City

Medical Diagnostic Limited v. Williams, 13 F.3d 1541 (11th

Cir.); Cafe 207, Inc. v. St. Johns County, 856 F.Supp. 641

(M.D. Fla. 1994).

am Wee or > ee rar a

CONCLUSION

For all the aforesaid reasons, it is respectfully requested

that this Court deny the Petition for Writ of Certiorari.

Respectfully submitted,

Dated: 2

October 23, 1997 -

Jerry M. Gewirtz ™A

Assistant City Attorney

Florida Bar No. 843865

Sth Floor, City Hall

315 E. Kennedy Blvd.

Tampa, Florida 33602

813/223-8996

Counsel for Respondents

The City of Tampa, Florida,

and Pam Iorio, in her

official capacity as

Supervisor of Elections

Hillsborough County, Florida

RednrSCt.Res