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The post below was published on Friday, September 10th, 2010 at 11:35 AM.

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Third District: Can They Do That?

Once in a while, we see a case that is fascinating on legal and procedural levels. While the story is a bit long, it ends with a twist that should intrigue appellate fans.

You may recall the publicity over a pair of Coral Gables ordinances that prohibit “the parking of trucks, trailers, and commercial and recreational vehicles upon the streets or other public places” between 7 am and 7 pm and prohibit parking trucks in residential areas at all times unless parked in an enclosed garage.

The city cited a man, Kuvin, $50 plus costs for violating the first of these two because he parked his noncommercial pickup truck outside the Coral Gables home he rented. After the zoning board upheld the fine, Kuvin appealed through a circuit court certiorari petition claiming both ordinances violated his constitutional right to association and were unconstitutionally vague and arbitrary, as well as selectively enforced. The circuit court upheld the ordinances, and Kuvin appealed to the Third District. Three years ago, a divided panel reversed the circuit court’s decision through this opinion authored by the inimitable Judge Schwartz. Longtime readers may recall that I wrote about the original decision, and its three opinions, here.

The city successfully moved for rehearing en banc. Considering that the Third District is, in my experience, often our most expeditious district court in terms of releasing decisions, it is notable that the en banc process, without additional briefing or argument, took three full years. The process resulted in the en banc court vacating the panel opinion and the panel dissenter, Judge Rothenberg, writing the en banc majority opinion affirming the circuit court’s decision. Judge Shepherd authored a special concurrence, and Judge Cortiñas authored a dissent. The opinions can be found here.

Summing things up, the majority held that the ordinances did not infringe on Kuvin’s right of association and that the regulations were rationally related to a legitimate government interest, thereby overcoming Kuvin’s arbitrariness challenge to the city’s exercise of its police powers. The majority opinion traces a number of lines of Florida zoning-related case law and is notably positive about the ordinances at issue, explaining that they “make perfect sense.”

Judge Shepherd’s brief concurrence focused on the philosophical validity of reviewing these three-decades-old ordinances through a modern lens and the barriers inherent in judicial review of subjective regulations such as the aesthetic-based ordinances at issue. His citation of case law invoking Immanuel Kant might bring back memories for any former political science majors out there. Judge Shepherd departed from what he perceived to be the majority’s subjective embrace of the ordinances, essentially finding such judgments to be beyond the judiciary’s role. He also pointed out that some states place restrictions on municipalities’ power to adopt zoning regulations aimed solely at aesthetics — but not Florida.

Judge Cortiñas’s dissent, which Judge Salter joined, acknowledged that the ordinances were facially constitutional but asserted that they failed an as-applied challenge with respect to Kuvin’s noncommercial Ford F-150 pickup. The dissent characterized the majority’s rational basis analysis as “the proverbial rubber stamp.” By the dissent’s analysis, the city’s ordinances may have been rationally related to aesthetics when the ordinances were adopted in the 1970’s, but not today as applied to Kuvin’s noncommercial small light truck.

The dissent pointed out that, “under the subject ordinances, anyone wishing to dine in Coral Gables may not park a personal-use light truck in any public area of the City or any residential driveway.” The dissent also noted the city’s “elitism” in admittedly enforcing the ordinance against pickup truck owners but not owners of sport utility vehicles or station wagons.

The majority took issue with the dissent’s use of non-record information about Kuvin’s model truck and challenged the dissent’s reliance on an as-applied challenge regarding Kuvin’s particular vehicle. Apparently, Kuvin’s as-applied challenge extended to all trucks used for personal purposes.

Here is where the procedural intrigue enters. As mentioned above, Judge Schwartz wrote the now-vacated panel majority opinion. He is a senior judge on the court and thus not in regular active service. He therefore could not sit on the en banc panel (under rule 9.331(a)), and, even if he had, another vote with the dissent would not have changed the outcome. Nonetheless, on the same date the court released its en banc panel opinions, the court also released this order by the original panel denying the city’s motion for rehearing and certifying the following to the Florida Supreme Court as a question of great public importance:


Judges Schwartz and Cortiñas concurred in this denial and certification. Judge Rothenberg dissented, arguing that the original panel lacks jurisdiction to certify any question because the en banc court ultimately vacated the panel decision and determined the case itself. Even more intriguing, while I do not have copies of the filings, it appears from the docket that the city never moved for rehearing — it moved for rehearing en banc, and the panel entered an order unanimously ruling that the motion for rehearing en banc would be treated as including a motion for rehearing.

Can a panel certify a question of great public importance when the en banc court has taken and determined the case, and can the panel do so while denying rehearing when the only rehearing motion filed was one for en banc review? This is all most interesting.

Had two judges dissenting from the en banc court’s decision written that a question should be certified, it seems apparent that those opinions would not constitute an effective certification. If that is correct, then the validity of panel’s certification might come down to whether anything material changes when the panel judges rule on a rehearing motion directed at the panel, which of course assumes the panel properly construed the rehearing en banc motion to include a motion for panel rehearing.

We may never learn the answers. Kuvin may choose not to continue this litigation, and the supreme court could deny review, if sought, without revealing whether the result is jurisdictional or discretionary or both. We will see.

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