CITY OF JACKSONVILLE BEACH, FLORIDA, APPELLANT,
v.
THE PUBLIC EMPLOYEES RELATIONS COMMISSION AND INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL NO. 2358 (AFL-CIO), APPELLEES
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The City of Jacksonville Beach appeals a Public Employees Relations Commission order certifying a union as the exclusive collective bargaining representative for city employees. The court addresses whether an automatic stay applies under appellate rules when a public body appeals an agency decision.
The timely filing of a notice of appeal by a public body automatically operates as a stay of the agency order pending review under Florida Appellate Rule 9.310(b)(2), regardless of conflicting statutory provisions in the APA and PERA. Appellate rules supersede conflicting statutory provisions because the Florida Supreme Court has constitutional authority over rules of practice and procedure.
[1] The timely filing of a notice of appeal by a public body automatically operates as a stay pending review, unless the court orders otherwise.
[2] Florida Rules of Appellate Procedure supersede conflicting statutory provisions regarding procedural matters.
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Join FLexlaw to unlock all legal intelligence“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”
Establishes the automatic stay provision for public bodies under Rule 9.310(b)(2)
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Join FLexlaw to unlock all legal intelligenceOn April 6, 1978, PERC entered an order certifying the International Brotherhood of Electrical Workers, Local 2358 as the exclusive collective bargain…
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PER CURIAM.
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 subsec tion (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.
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Dep't OF Safety v. Stockman, 709 So. 2d 179 (Fla. 5th DCA 1998)…of certiorari review of the order, power to suspend its effect. Any conflict between statutes and rules regarding court procedure must of course be resolved in favor of the rules. City of Jacksonville Beach v. Public Employees Relations Commission, 359 So. 2d 578 (Fla. 1st DCA 1978), cert. denied, 374 So. 2d 98 (Fla.1979); School Board of Hillsborough County v. Lara, 667 So. 2d 368 (Fla. 1st DCA 1995). Were the circuit court not accorded discretionary power to stay the administrative order under review, rev…
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City OF Sarasota v. AFSCME Council '79 & Pub. Emps. Relations Comm'n, 563 So. 2d 830 (Fla. 1st DCA 1990)…llective bargaining unit. Because the city is a public body as contemplated by Rule 9.310(b)(2), the filing of the notice of appeal automatically operates as a stay pending appeal. City of Jacksonville Beach v. Public Employees Relations Commission, 359 So. 2d 578 (Fla. 1st DCA 1978). AFSCME filed a motion to set aside the automatic stay, which was granted by the lower tribunal. The city now moves for review of the order vacating the stay, as allowed by Rule 9.310(f). The motion does not attach an appendix…
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Sch. Bd. OF Hillsborough Cnty. & Alexsis, Inc. v. Leila Lara, 667 So. 2d 368 (Fla. 1st DCA 1995)…make clear that the rule provides for an automatic stay without bond, and to the extent the statutory bond requirement is in conflict with Rule 9.310(b)(2), the rule must control. City of Jacksonville Beach v. Public Employees Relations Commission, 359 So. 2d 578 (Fla. 1st DCA 1978). Accordingly, we hold that the bond requirement of section 440.25(5)(c) does not apply to public bodies entitled to the benefit of the automatic stay provision of Rule 9.310(b)(2),, and we therefore deny the motion to dismiss.…
Authorities Cited
- Ira Johnson v. State, 308 So. 2d 127 (Fla. 1st DCA 1975)
- Lewis v. Career Serv. Comm'n of the State of Fla., 332 So. 2d 371 (Fla. 1st DCA 1976)