IN THE SUPREME COURT OF FLORIDA

IN THE SUPREME COURT OF FLORIDA

___________________________________ CASE No.: SC00-2252

Lower Tribunal No.: 4D99-1664 ___________________________________

LAWRENCE LOWE, Petitioner, vs.

BROWARD COUNTY, Respondent.

___________________________________ On Appeal from the Court of Appeal of Florida,

Fourth District ___________________________________

BRIEF OF PETITIONER ___________________________________

JORDAN W. LORENCE JONATHAN P. GUNDLACH NORTHSTAR LEGAL CENTER P.O. Box 2074 Fairfax, Virginia 22031 (703) 359-8619

M. GLENN CURRAN #0503665 CURRAN & CURRAN 2400 mercial Blvd. #208 Ft. Lauderdale, Florida 33308 (954) 938-9922

Attorneys for Petitioner

STATEMENT OF THE CASE AND OF THE FACTS This case challenges Broward County's Domestic Partnership Act, which establishes a procedure for unmarried couples, same-sex or opposite-sex, to create a "domestic partnership" that is officially recognized by Broward County ("County"). Appendix at A-10 through A-14. The Domestic Partnership Act ("Act") also grants certain rights, privileges and benefits to authorized "domestic partners." Id. The petitioner argues that Broward County exceeded its home rule authority in enacting the Domestic Partners Act, so the act is ultra vires and void. On January 26, 1999, the Broward County Board enacted Ordinance 1999-03, entitled the "Broward County Domestic Partnership Act of 1999" ("Act"). The Act is codified in the Broward County ordinances at Sections 16 ?-151 to 16 ?-162. Id. The Act initially became effective on February 4, 1999, but was subsequently amended. The amended version became effective on April 27, 1999. A-14. The amended version is the current version of the ordinance and is the one challenged by this lawsuit. The Broward County Domestic Partnership Act creates the following: - establishes a County registry for unmarried same-sex and opposite-sex couples to register as "domestic partners,"

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(Sec. 16 ?-153; A-11) and a divorce-like process for domestic partners to terminate their partnership. Sec. 16 ?-154; A-11.

- grants health insurance benefits to the domestic partners of County employees. Sec. 16 ?-156(a); A-12.

- grants sick leave, annual leave, family illness leave and bereavement leave to the domestic partners of County employees. Sec. 16 ?-156(b); A-12.

- grants "all other benefits available to the spouses and dependents of County employees" to a domestic partner registered under the official County domestic partnership registry. Sec. 16 ?-156(c); A-12.

- establishes a preference system for private companies contracting with the County, in which companies that offer domestic partner benefits to their employees gain a preference when bidding on County contracts. Sec. 16 ?-157; A-12 and A13.

- gives domestic partners the same rights to visitation that married spouses have when visiting their spouses in private health care facilities; private licensed residential facilities, county correctional facilities or county juvenile detention facilities. Sec. 16 ?-158; A-13 and Sec. 16 ?-161; A-13 to A-14.

- grants domestic partners the same rights as married

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spouses to be designated as health care surrogates or preneed

guardians. Sec. 16 ?-159 and 160; A-13.

Lawrence Lowe is the petitioner in this case. He is a resident and taxpayer of Broward County.1 Lowe v. Broward

County, 766 So. 2d 1199, 1203 (Fla. App. 4th DCA 2000); A-3.

Lowe challenged the ordinance on the basis of being a Broward

County taxpayer and resident,766 So. 2d at 1203; A-3; which

the Circuit Court permitted, id.

Lowe filed a complaint challenging the constitutionality

of the Act on February 18, 1999 based on the Florida

Declaratory Judgment Act, pursuant to Fla. Stat. 86.011 and

86.021. 766 So. 2d at 1203; A-3. Lowe sought a declaratory

judgment that the Domestic Partnership Act violated Article

VIII, ? 1(g) of the Florida Constitution and various Florida

state statutes. Id. The Circuit Court, Judge Robert Lance

Andrews presiding, denied Lowe's motion for a temporary

1 Lowe later sought standing additionally as a one who submits bids to Broward County for contracts. Lowe is also an employee of York Tape and Label, Inc. of York, Pennsylvania. Second Affidavit of Lawrence Lowe. The Circuit Court denied leave to amend to add this additional ground for standing. Transcript of Hearing April 21, 1999, pp. 5-10. Although the petitioner appealed this standing decision to the Court of Appeals, that court did not rule on the petitioner's appeal that it had additional grounds for standing as a contractor who works for a company that does not offer domestic partner benefits. 766 So. 2d at 1203 n. 3; A-3.

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injunction, and also denied the County's motion to dismiss the complaint for lack of standing. Id. The Circuit Court granted final judgment for the County, upholding the Act and rejecting Lowe's constitutional challenge and his request for declaratory and injunctive relief. Id.

Petitioner Lowe appealed to the Fourth District Court of Appeals. On September 20, 2000, the Fourth DCA upheld all but one part of the Broward County Domestic Partnership Act. The DCA struck down the portion of the Act requiring health facilities to designate domestic partners as health care surrogates on the same terms that spouses are. The DCA ruled that Fla. Stat. ? 765.401 preempted the County ordinance. 766 So. 2d at 1210; A-8 and A-9.

Although it agreed with Petitioner Lowe that home rule counties may not legislate in areas of statewide concern, and that family law/domestic relations is an area of statewide concern, The Fourth DCA rejected Lowe's conclusion that Broward County exceeded its home rule authority by creating a new family/domestic relationship called "domestic partnership." 766 So. 2d at 1204-1206; A-4 to A-5.

The Fourth DCA also rejected the Lowe's claims that various Florida statutes preempt the Broward County Domestic Partnership Act. Specifically, the Fourth DCA rejected Lowe's

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