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(1) Fla Stat2
Section 838016 Fla Stat2
Section 838022 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
This Court should accept discretionary review in this case based on Rule
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
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(1) Fla Stat2
Section 838016 Fla Stat2
Section 838022 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
This Court should accept discretionary review in this case based on Rule
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 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(1) Fla Stat2
Section 838016 Fla Stat2
Section 838022 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
This Court should accept discretionary review in this case based on Rule
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 CITATIONS AND AUTHORITIESTcontd)
Pagg
Rule 9220 Fla R App P 1
Section 838015(1) Fla Stat24
Section 838016(1) Fla Stat2
Section 838016 Fla Stat2
Section 838022 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
This Court should accept discretionary review in this case based on Rule
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
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
This Court should accept discretionary review in this case based on Rule
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
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
This Court should accept discretionary review in this case based on Rule
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
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
This Court should accept discretionary review in this case based on Rule
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
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
This Court should accept discretionary review in this case based on Rule
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
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
This Court should accept discretionary review in this case based on Rule
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
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
This Court should accept discretionary review in this case based on Rule
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
II CERTIORARI REVIEW IS WARRANTEDAS THE PANEL DECISION EXPRESSLY AFFECTS A CLASS OF CONSTITUTIONAL OR STATE OFFICERS
This Court should accept discretionary review in this case based on Rule
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
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
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
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