From Casetext: Smarter Legal Research

City of Jacksonville v. Pub. Emp. rel

District Court of Appeal of Florida, First District
Jun 12, 1978
359 So. 2d 578 (Fla. Dist. Ct. App. 1978)

Opinion

No. JJ-418.

June 12, 1978.

Petition for review from the Public Employees Relations Commission.

John F. Dickinson of Coffman Coleman, Jacksonville, for petitioner.

H. Wade Gurley, Representative, Rodney W. Smith, William E. Powers, Jr., Tallahassee, for respondent.


ON MOTION TO STAY


On April 6, 1978, Appellee-Florida Public Employees Relations Commission (PERC) entered an Order verifying the results of an election and certifying Appellee-International Brotherhood of Electrical Workers, Local 2358 (AFL-CIO), as the exclusive collective bargaining representative for employees in the unit described in the order. On April 26, 1978, Appellant-City of Jacksonville Beach filed a timely notice of appeal to review Appellee-PERC's order. Appellant has also filed a motion seeking a stay of the order during the pendency of this appeal, citing Fla.R.App.P. 9.310(b)(2) as authority therefor.

Fla.R.App.P. 9.310(b)(2) provides as follows:

(2) Public Bodies; Public Officers.

The timely filing of a notice shall automatically operate as a stay pending review, except in criminal cases, when the State, any public officer in an official capacity, board, commission or other public body seeks review; provided that on motion the lower tribunal or the court may impose any lawful conditions or vacate the stay.

In its motion for stay, appellant alludes to possible conflict between Rule 9.310 and sections of the Administrative Procedure Act (APA) and the Public Employees Relations Act (PERA) which speak to judicial review of final agency action. Section 120.68(3) of the APA and section 447.504(5) of the PERA both state, in effect, that the filing of a petition for judicial review of final agency action does not, in itself, operate as a stay of the agency decision or order. This court so held in Lewis v. Career Service Commission, 332 So.2d 371 (Fla.1st DCA 1976).

The 1977 Advisory Committee and Court's Commentary following Fla.R. App.P. 9.310 states, with regard to subsection (b)(2), that the rule supersedes Lewis, supra. To the extent that Rule 9.310(b)(2) is in conflict with the statutory provisions discussed above, the rule must prevail, for any legislative attempt to create rules of practice or procedure would be an intrusion upon the power of the Florida Supreme Court as defined in Article V, Sec. 2(a), Florida Constitution, and, thus, in violation of the doctrine of separation of powers as set forth in Article II, Sec. 3, of that Constitution. See Johnston v. State, 308 So.2d 127 (Fla.1st DCA 1975).

The filing of the notice of appeal by appellant automatically operated as a stay of Appellee-PERC's order pending review by this court. Fla.R.App.P. 9.310(b)(2). Accordingly, the Motion for Stay filed herein is hereby determined to be moot.

IT IS SO ORDERED.

BOYER, Acting C.J., and SMITH and BOOTH, JJ., concur.


Summaries of

City of Jacksonville v. Pub. Emp. rel

District Court of Appeal of Florida, First District
Jun 12, 1978
359 So. 2d 578 (Fla. Dist. Ct. App. 1978)
Case details for

City of Jacksonville v. Pub. Emp. rel

Case Details

Full title:CITY OF JACKSONVILLE BEACH, FLORIDA, APPELLANT, v. THE PUBLIC EMPLOYEES…

Court:District Court of Appeal of Florida, First District

Date published: Jun 12, 1978

Citations

359 So. 2d 578 (Fla. Dist. Ct. App. 1978)

Citing Cases

School Board of Hillsborough County v. Lara

310 make clear that the rule provides for an automatic stay without bond, and to the extent the statutory…

Department of Safety v. Stockman

Any conflict between statutes and rules regarding court procedure must of course be resolved in favor of the…