04-22-08 Item 4MEMORANDUM
To: Mayor and City Commission
From: Eve A. Boutsis, office of City Attorney
Nagin Gallop & Figueredo, P.A.
Date: April 1, 2008
Re: Amendment of Florida Rules of Appellate Procedure
Request:
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF SOUTH MIAMI, FLORIDA, RELATING TO PROPOSED AMENDMENT
TO FLORIDA RULE OF APPELLATE PROCEDURE 9.310(b)(2); ELECTING
TO OPPOSE THE AMENDED RULE AND SUBMIT WRITTEN COMMENTS;
PROVIDING AN EFFECTIVE DATE.
Background: On February 1, 2008, the Triennial Cycle Report of the Appellate Court Rules
Committee was filed and an amended report was filed on February 15, 2008. This report
proposes to amend, among other things, the "automatic stay" provision of the Florida Rule of
Appellate Procedure 9.310(b)(2). If approved, this proposed amendment will eliminate the
automatic stay now afforded to governmental entities when they appeal orders issued by state
agencies in administrative proceedings governed by Chapter 120, Florida Statutes. In short, if
the city were to appeal an order of a state agency under the Florida Administrative Procedures
Act, there would no longer be an automatic stay of the proceedings below.
Pursuant to Florida Rule of Judicial Administration 2.140(b)(5) and (6) several Florida
counties, cities, and other governmental entities have agreed to submit written comments in
opposition to the proposed amendment. On March 21, 2008, Elizabeth Hernandez, the city
attorney for Coral Gables, issued a global mailing to all city attorneys in Miami -Dade County, in
conjunction with the Florida League of Cities, to request support for the League's position to
oppose an appellate Court Rule Change being proposed for the future.
Attached to the resolution is the League's (and any city that joins in on the opposition)
comments and objections to the proposed rule amendment. The rule amendment is perceived to
have a significant adverse impact on Florida cities and other governmental entities, who from
time -to -time are parties in administrative proceedings under the Administrative Procedures Act.
The Automatic stay provision has existed since the 1940, and provided a stay of proceedings
while the entity sought appellate review of an order, which means there would be no execution
or performance of a judgment.
Memorandum to Mayor and City Commission
Relating to Opposition to Appellate Rule Change
April 1, 2008
Page 2 of 2
As the time frame for filing comments was April 1, 2008, I advised the mayor and city
commission of the issues related to the proposed rule change. Additionally, I advised, that on
behalf of the City, I would submit prior to the April 1 st deadline, the City's Notice of Joinder and
Adoption of Written Comments in Opposition to the Proposed Amendment to Rule 9.310(b)(2),
as drafted by the Florida League of Cities. I filed the City's notice of support on March 28,
2008, as I received no objection to my request. I also advised that I would place an agenda item
on the upcoming April, 2008 council meeting agenda requesting a ratification by the City
Commission of the filing.
Recommendation: Adoption of the position of opposition to the proposed amendment
to Florida Rule of Appellate Procedure 9.310(b)(2) as submitted by the City Attorney, on behalf
of the City of South Miami.
Fiscal Impact: No financial impact to the City. Removal of the stay may cause financial
impact to the City in the future, and, therefore, the request to support the Florida League of Cities
opposition to the rule change.
s
I RESOLUTION NO.
2
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4 A RESOLUTION OF THE MAYOR AND CITY COMMISSION
5 OF THE CITY OF SOUTH MIAMI, FLORIDA, RELATING TO
6 PROPOSED AMENDMENT TO FLORIDA RULE OF
7 APPELLATE PROCEDURE 9.310(b)(2); ELECTING TO OPPOSE
8 THE AMENDED RULE AND SUBMIT WRITTEN COMMENTS;
9 PROVIDING AN EFFECTIVE DATE.
10
11 WHEREAS, on February 1, 2008, the Triennial Cycle Report of the Appellate
12 Court Rules Committee was filed and an amended report was filed on February
13 15, 2008; and,
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15 WHEREAS, the Triennial Report proposes to amend, among other things, the
16 "automatic stay" provision of the Florida Rule of Appellate Procedure 9.310(b)(2);
17 and,
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19 WHEREAS, if approved, this, proposed amendment will eliminate the
20 automatic stay now afforded to governmental entities when they appeal orders
21 issued by state agencies in administrative proceedings governed by Chapter 120,
22 Florida Statutes; and,
23
24 WHEREAS, pursuant to Florida Rule of Judicial Administration 2.140(b)(5)
25 and (6) several Florida counties, cities, and other governmental entities have
26 agreed to submit written comments in opposition to the proposed amendment; and,
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28 WHEREAS, the Mayor and City Commission of the City of South Miami
29 desire to adopt the position of opposition to the proposed amendment to Florida
30 Rule of Appellate Procedure 9.310(b)(2).
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32 NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND CITY
33 COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA;
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35 Section 1. It is the intent of the City of South Miami to adopt the
36 position of opposition to the proposed amendment to Florida Rule of Appellate
37 Procedure 9.310(b)(2), along with various other Florida counties, cities, and other
38 governmental entities.
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Additions shown by underlining and deletions shown by °��°r�.
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Section 2. Due to the April 1, 2008 deadline the City Attorney, on behalf
of the Mayor and City Commission, submitted to the Florida Supreme Court the
City's written comments in opposition to proposed amendments to Florida Rule of
Appellate Procedure 9.310(b)(2)
Section 3. This resolution shall take effect retroactive to April 1, 2008 to
ratify the submittal of the City.
PASSED AND ADOPTED this
ATTEST:
CITY CLERK
N- -
Eve A. Boutsis,
Nagin Gallop Figueredo, P.A.
Office of City Attorney
day of. , 2008.
APPROVED:
MAYOR
Page 2 of 2
COMMISSION VOTE:
Mayor Feliu:
Vice Mayor Beasley:
Commissioner Beckman:
Commissioner Wiscombe:
Conunissioner Palmer: