Sanford v. Rubin
| Decision Date | 01 July 1970 |
| Docket Number | 38422,Nos. 38357,s. 38357 |
| Citation | 237 So.2d 134 |
| Parties | Leonard SANFORD, Appellant, Petitioner, v. Simon E. RUBIN et al., Appellees, Respondents. Julius SHAPIRO, Appellant, Petitioner, v. Simon E. RUBIN et al., Appellees, Respondents. |
| Court | Florida Supreme Court |
Stephen H. Cypen, of Irving Cypen Law Offices, Miami Beach, for appellants-petitioners.
Joseph A. Wanick, City Atty., for appellees-respondents.
By petition for certiorari, we have for review a decision of a District Court of Appeal (Rubin v. Sanford, 218 So.2d 177), which allegedly conflicts with prior decisions of this Court and the decisions of other District Courts of Appeal.
This litigation began when the City of Miami Beach through the respondents, members of the Personnel Board of the City, attempted to remove three firemen, Julius Shapiro, Leonard Sanford (petitioners herein) and Henry Major from their positions in the City Fire Department because they had been found guilty of a criminal act involving fraud in the Criminal Court of Dade County, Florida. The Criminal Court, however, withheld adjudication of guilt.
In accordance with the procedure established by the City's Civil Service Act, Ch. 18696, Special Acts of 1937, as amended by Ch. 27735, Special Acts of 1951, charges were preferred by the Chief of the Fire Department. These charges were heard by the City's Personnel Board. The Board, for a technical reason, dismissed these charges, and the Fire Chief thereupon refiled the charges. This resulted in a second hearing at which the Personnel Board upheld the removal of the three firemen.
Each of them then filed a petition for writ of certiorari in the Circuit Court. After a hearing, the Circuit Court ordered that Shapiro and Sanford be reinstated. The case of the third fireman, Henry Major, was held in abeyance in the Circuit Court pending determination of the cases involving Shapiro and Sanford.
On appeal, the Third District Court of Appeal affirmed the judgment of the Circuit Court. Rubin et al. v. Sanford, 168 So.2d 774 (Fla.App.3rd, 1964); Rubin et al. v. Shapiro, 170 So.2d 460 (Fla.App.3rd, 1965). Petitions for certiorari were denied by this Court. Rubin et al. v. Sanford, 180 So.2d 331 (Fla.1965); Rubin et al. v. Shapiro, 180 So.2d 334 (Fla.1965).
After the cases were remanded, a disagreement arose as to whether these firemen were entitled to full pay for the time they were off the City's payroll or whether they were entitled to only the difference between their salaries and what they had earned in outside employment. Further legal proceedings were held which resulted in the Third District Court of Appeal holding that the City was entitled to set off what these firemen had earned in outside employment against the salaries due the firemen. Rubin et al. v. Shapiro, 198 So.2d 854 (Fla.App.3rd, 1967); Rubin et al. v. Sanford, 198 So.2d 856 (Fla.App.3rd, 1967). In the latter opinion, the District Court on remand ordered the trial court to ascertain the amount of attorneys' fees to be allowed for services in the trial court. Once again, Shapiro and Sanford sought certiorari and their petitions were denied. Sanford v. Rubin et al., 204 So.2d 331 (Fla.1967); Shapiro v. Rubin et al., 204 So.2d 331 (Fla.1967).
The only question remaining in the litigation was the amount of 'reasonable attorneys' fees' to be awarded to the attorneys for the firemen under the provisions of § 8, Ch. 27735, Special Acts 1951, which contains the following:
'When an appeal from disciplinary action finally results in a reversal or setting aside of such disciplinary action by the Personnel Board, or by a competent Court, then the employee shall be entitled to recover all wages and emoluments lost by reason of such disciplinary action, and to recover his court costs and reasonable attorney's fees as determined by the Personnel Board in the event that the final determination of this issue has been made by said Personnel Board or determined by the Court, if final determination is as a result of Court action.' (pp. 1772, 1773).
Judgment was obtained from one Circuit Judge in the amount of $12,500 as attorneys' fees for representing Sanford and another judgment was procured from another Circuit Judge in the identical amount as attorneys' fees for representing Shapiro. The respondents appealed these judgments to the Third District Court of Appeal which held that the two Circuit Judges were without jurisdiction to include within these fees an amount for work done in the Appellate Court. The District Court reversed and ordered the Circuit Judges to fix a fee excluding therefrom any work done in the Appellate Court. Rubin et al. v. Sanford, 198 So.2d 856 (Fla.App.3rd, 1967).
Thereafter, the first Circuit Judge awarded a $9,000 fee in the Sanford case and the second Circuit Judge awarded an identical fee in the Shapiro case. The respondents, members of the Personnel Board, being dissatisfied with the amount of the fee again appealed to the Third District Court. This appeal was grounded on the question of whether the awards were so grossly excessive as to shock the judicial conscience. During the course of one of the oral arguments, the attorney for the Personnel Board asserted for the first time that the provisions of the City's Civil Service Act in § 8, Ch. 27735, Special Acts 1951, was unconstitutional because no reference was made in the title of the Act to awards for attorneys' fees. The title of the Act reads as follows:
Thereupon, the Third District Court of Appeal required the parties to file additional briefs and participate in an additional oral argument limited to this constitutional question. The Third District Court of Appeal then entered its opinion and judgment (Rubin et al. v. Sanford and Rubin et al. v. Shapiro, 218 So.2d 177), which is now before us for review by petition for writ of certiorari. The District Court held that the failure to include the right to attorneys' fees in the title made Section 8 of the Act unconstitutional and said:
'It is also apparent that the question of constitutionality of a statute, tested in light of the provisions of Art. III, § 16, Constitution of the State of Florida, may be raised for the first time on appeal as fundamental error.
'* * *
(p. 179)
The opinion and decision under attack is in conflict with Randi v. State, 182 So.2d 63i (Fla.App.1st, 1966), where the Court said:
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