IN THE SUPREME COURT OF FLORIDA MARY KATHERINE DAY-PETRANO_ Case

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					                    IN THE SUPREME COURT OF FLORIDA


MARY KATHERINE DAY-PETRANO,                 Case No. SC05-1181
                                                 No. 2D03-4867
                   Petitioner,                   L.T. 03-00013-APANO
 vs.                                                  03-00044-APANO

STATE OF FLORIDA, et. al.,

                  Respondents.
 __________________________________/


             PETITIONER’S AMENDED JURISDICTIONAL BRIEF

                       On Review from the District Court
                          of Appeal, Second District
                               State of Florida




                                                   Mary Katherine Day-Petrano
                                                                 P.O. Box 3704
                                                Clearwater Beach, Florida 33767
                                                          (727) 808-0446 (Cell)
                                                               Petitioner, pro se
                               TABLE OF CONTENTS


Table of Citations …………………………………………………………….. ii-iv
Statement of the Case and Facts ……………………………………………… 1-6
Summary of the Argument …………………………………………………… 6
Jurisdictional Statement ……………………………………………………… 6
Argument …………………………………………………………………….. 7
   A. The Decision of the Second District Court of Appeal in this Case
        Expressly and Directly Conflicts with the Decision of This Court in
        Barry v. Burdines, 675 So.2d 587 (Fla. 1996), cert. denied 519 U.S. 966 (1996).. 5
   B. The Decision of the District Court Expressly Declares Several Florida
        Traffic and Driver’s Licensing Statutes (And Virtually Every Florida
        Statute) Constitutional Under The Americans With Disabilities Act of
        1990. …………………………………………………………………… 8
    C. The Decision of the District Court Expressly Construes a Provision of
        the State or Federal Constitutions. ……………………………………. 9
    D. The Decision of the District Court Expressly Construes a Provision of
         the State or Federal Constitutions. …………………………………….11
Conclusion …………………………………………………………………….12
Certificate of Compliance …………………………………………………….. 13
Certificate of Service …………………………………………………………..14-15




                                             2
                                    TABLE OF CITATIONS

United States Constitutional Provisions

First Amendment, U.S. Constitution ……………………………………………………… 8
Fourteenth Amendment, U.S. Constitution ………………………………………….. 8

Florida Constitutional Provisions

Florida Constitution Art. V, §1 ……………………………………………………............. 3
Florida Constitution Art. V, 5 ……………………………………………………………... 3
Florida Constitution Art. V. §3 ……………………………………………………………..3
Florida Constitution Art. V. §3(b)(3) ……………………………………………………… 8
Florida Constitution Art. V, §4(b) ………………………………………….….10, 11

United States Supreme Court Cases

Tennessee v. Lane, 2004 U.S. LEXIS 3386 (2004) ………………………… 4, 5, 6, 7, 8, 11

Florida Supreme Court Cases

Armstrong v. City of Tampa, 106 So.2d 407, 409 (Fla. 1958) …………………………….. 11
Barry v. Burdines, 675 So.2d 587 (Fla. 1996), cert. denied 519 U.S. 966 (1996) ….. 2, 4, 5, 6,
                                                                                  7, 8, 9, 11
Cantor v. Davis, 489 So.2d 18 (Fla. 1986) ……………………………………………….…. 9
Dykman v. State, 294 So.2d 633, 634-635 (Fla. 1973), cert. denied, 419 U.S. 1105
(1975) ………………………………………………………………………………………. 11
Ford Motor Co. v. Kikis, 401 So.2d 1341, 1342 (Fla. 1981) …………………………………8
Ogle v. Pepin, 273 So.2d 391, 392 (Fla. 1973) ……………………………………………... 11
Potvin v. Keller, 313 So.2d 703 (Fla. 1975) ……………………………………………….... 11
Seaboard Air Line R.R. Co. v. Branham, 104 So.2d 356, 358 (Fla. 1958) …………………... 4
Spradley v. State, 293 So.2d 697, 701 (Fla. 1974) …………………………………….. 12
State v. Bowman, 437 So.2d 1095, 1095-1096 (Fla. 1983) …………………………………..13
State v. Lee, 121 Fla. 815, 819, 164 So. 536, 538 (Fla. 1935) ……………………………….. 6
Sun Insurance Co. v. Boyd, 105 So.2d 574 (Fla. 1958) ……………………………………… 3

Florida District Court of Appeal Cases




                                               3
Chapman v. Universal Underwriters Insurance Company, 549 So.2d 679 (Fla. 1st
DCA 1989) ………………………………………………………………………………….. 3
Carter v. Dorman, 385 So.2d 740 (Fla. 3d DCA 1980) …………………………………….. 3

Court Rules

Fla.R.App.P. 9.030(a)(2)(A)(i) ………………………………………………………………. 8
Fla.R.App.P. 9.030(a)(2)(A)(ii) ……………………………………………………………… 8
Fla.R.App.P. 9.030(a)(2)(A)(iii) ………………………………………………………........... 8
Fla.R.App.P. 9.030(a)(2)(A)(iv) ……………………………………………………………... 8

Settlement Agreements

Florida State Courts System Settlement Agreement with the United States of America,
dated Jun. 20, 1996, http://www.usdoj.gov/crt/foia/fl11/txt ........………………………....... 6
Sixth Judicial Circuit Settlement Agreement with the United States of America, 1993,
http://www.usdoj.gov/crt/foia/fl13.txt ……………………………………………………... 6
Clearwater Settlement Agreement with the United States of America, 1993,
http://www.usdoj.gov/crt/ foia/flaclearwater.html ……………………………………….... 6

Florida State Courts System Title II, Americans With Disabilities Act of 1990
Statewide Guideline

Large print policy, http://www.flcourts.org/gen_public/pubs/adati2.shtml ………………... 8

Secondary Materials

Hon. Anstead, Hon. Kogan, Hall, and Waters, The Operation and Jurisdiction of the Florida
Supreme Court, NOVA L. Rev. Vol. 29 No. 3 (Spring 2005), at
   p. 503 …………………………………………………………………………………….. 7
   p. 512 n.460 ………………………………………………………………………………. 8
   p. 505 & n.413 …………………………………………………………………. 11

Federal U.S. Court of Appeal Cases

Livingston v. Guice, 1995 U.S. App. LEXIS 29238 (4th Cir. 1995) …………………………... 6
Popovich v. Cuyahoga County Court, 276 F.3d 808 (6th Cir. 2002) ………………………….. 6
Jankowski Lee & Associates v. Cisneros, 91 F.3d 891, 895 (7th Cir. 1996) ……………………4
Biddulph v. Mortham, 89 F.3d 1491, 1494-95 (11th Cir. 1996) ……………………………….. 3



                                               4
Bledsoe v. Palm Beach County Soil & Water Conservation Dist., 133 F.3d 816, 822
(11th Cir. 1998) ………………………………………………………………………………… 5
Miller v. King, 384 F.3d 1248, 1267 (11th Cir. 2004) …………………………………………. 4
Shotz v. Cates, 256 F.3d 1077, 1080 (11th Cir. 2001) …………………………………………. 4
Shotz v. City of Plantation, Fla., 2003 U.S. App. LEXIS 18527 (11th Cir. 2003) …………….. 5
South Dakota Farm Bureau, Inc. v. Hazeltine, 13 A.D.Cases 136 (D.S.Dak. 2002) ………….. 3

Federal District Court Cases

Bartlett v. New York Bd. of LawExaminers, 2001 WL 930792 (S.D.N.Y. 2001) …………….. 3
Becker v. Oregon, 170 F.Supp.2d 1061, 1066 (D.Ore. 2001) …………………………………. 6
Cox v. Alabama State Bar, 2005 WL 1309024 (M.D.Ala. Jun. 1, 2005) ………………………3
Harding v. Winn-Dixie Stores, Inc., 907 F.Supp. 386 (M.D.Fla. 1995) ………………………. 5
Mangin v. Westco Security Systems, Inc., 922 F.Supp. 563, 567 (Fla. M.D. 1996) ………… 5, 6
Mincewitz v. Parker, 2001 WL 256162 (D.Conn. 2001) …………………………………….... 6
T.E.P. v. Leavitt, 840 F.Supp. 110, 111 (C.D.Utah 1993) …………………………………….. 4

Federal Statutes

Title II, Americans With Disabilities Act of 1990 (“ADA”) ………………………… 7, 8, 9, 10
Title V, Americans With Disabilities Act of 1990 (“ADA”) ……………………...7, 8, 9, 10
42 U.S.C. §12101(a)(8) ………………………………………………………………………... 5
42 U.S.C. §12101(1)(B) ……………………………………………………………………….. 5
42 U.S.C. §12131(1)(B) …………………………………………………………………….. 4, 5
42 U.S.C. §12131(2) ………………………………………………………………………... 3, 4
42 U.S.C. §12132 ………………………………………………………………………………. 7
42 U.S.C. §12203 ………………………………………………………………………………. 7
42 U.S.C. §12201(b) ………………………………………………………........................... 3, 11
42 U.S.C. §12202 ..……………………………………………………………………………. 10
42 U.S.C. §12203(a), (b) ………………………………………………………………. 7

Federal Regulations

28 C.F.R. pt. 35 …………………………………………………………………….................... 7
28 C.F.R. §35.130(f) …………………………………………………………………………… 4
28 C.F.R. §35.150(a)(3) …………………………………………………………………….. 2, 7

Secondary Materials

DOJ Title II Technical Assistance Manual, §II-2.1000 ……………………………………….. 4

                                           5
DOJ Title II Technical Assistance Manual, §II-1.4200 …………………………………………4

Internet Sites

http://www.drpodell.org/autism_treatments.shtml …………………………………………… 4




                                  6
                           STATEMENT OF THE CASE AND FACTS

       Due to deliberate indifference/unlawful discrimination against this disabled Petitioner,

Mary Katherine Day-Petrano, “as applied” by Striking and Ordering her to re -file her

Jurisdictional Brief before this Court has provided her assistance/an opportunity to request

necessary reasonable accommodations under the Americans With Disabilities Act of 1990

(“ADA”), thereby preventing her from the ability to comply with this Court’s Jul. 19, 2005

Order, Petitioner re-submits this Jurisdictional Brief to the best of her ability in its non-

conforming form to ensure it is at least timely. Until this Supreme Court entertains the provision

of necessary reasonable accommodations to this communication disabled Petitioner, it is an

impossibility for her to place this Jurisdictional Brief within the required font size, 10 -page

limit, and time allowed.

       If this Supreme Court insists on requiring the disabled Petitioner make her Jurisdictional

Brief conform to the Court’s Order (i.e., fitting a square peg into a round hole), then Petitioner

respectfully requests the Court hold this Jurisdictional Brief in abeyance until after the Court

hears and decides Petitioner’s accompanying Motion for Reasonable Accommodations, Etc. to

enable her to comply with Jurisdictional Brief requirements “with or without” modification of

the same.

       Petitioner, a disabled American, despite suffering from neurological autoimmune

reaction disabilities resulting from a complex interaction between the immune system and

nervous system: autistic disorder, learning disabilities (exacerbated by bacterial meningitis



                                                7
when petitioner was 5 years old), and associated cervical mobility disabilities, was, with

deliberate indifference, discriminated against by Clerks of this Supreme Court and/or the

assigned Central Staff (collectively) whom:

        (1) misleadingly advised her T he Supreme Court does not have Internal Operating
   Procedures, when in fact the same are posted on this Court’s web site;
        (2) thus far refused to assist/provide her with an opportunity to secure necessary reasonable
   accommodations to enable her to meaningfully participate in this Supreme Court appellate review,
   including this particular Jurisdictional Brief, before her appellate matter decisions are rendered
   thereon such as the Jul. 19, 2005 Order , with clear knowledge she is severely communication
   disabled;
        (3) neglected to decide (calling it “moot”) her previous request for in forma p auperis
   reasonable accommodations to remove transportation/financial barriers preventing her (in the
   absence of a valid driver’s license to drive herself to Lakeland from Clearwater Beach, Florida,
   and in light of the inaccessibil ity of public trans portation to accommodate her particular
   disabilities making travel to Lakeland impossible) from complying with this Co urt’s Order
   Striking her first Jurisdictional Brief and Ordering her to travel/obtain from Lakeland, Florida
   “conformed copies” of the Second District Court of Appeals’ Orders to attach to this re -filed
   Jurisdictional Brief;
        (4) struck her first Jurisdictional Brief with deliberate disregard of the ADA’s Title II anti-
   discrimination prohibition against unlawfully discriminating against her in the absence of
   necessary reasonable accommodations to place pleadings in written format due to her substantial
   limitations in the major life activity of writing, by creating/placing impermissible additional
   written pleading burdens upon her (doubling the amount of writing she is required to do) contrary
   to the nature of her disabilities and requiring certain font size without making the same accessible
   to her computerized assistive device;
        (5) did so, in violation of Barry v. Burdines, 675 So.2d 587, 589 (Fla. 1996), cert. denied 519
   U.S. 966 (1996), and the ADA ’s Title II implementing regulation, 28 C.F.R. §35.150(a)(3)
   inclusion of the written statement of reasons for why the full range of Petitioner’s reasonable
   accommodations were denied in the District Court of Appeal and lower tribunals within the
   “conformed copies” attached to this Jurisdictional Brief, indicating this Supreme Court intends to
   posture her case in bad faith for automatic dismissal by the discriminatory method of eliminating
   the “administrative” reasonable accommodations denial decisions from the entire District Court of
   Appeal hybrid composite decision in this case – while the Supreme Court and Chief Justice
   presently share the same legal representation (Zinober & McCrea, P.A.) with several Respondents
   they are adjudicating in this matter in the parallel Federal litigation, Petrano v. State of Florida,
   et. al., M.D.Fla. Case No. 8:03-cv-1746-T-24 SCB MSS; and



                                                     8
           (6) further did so while refusing to reasonably modify the 10-page Jurisdictional Brief and 14
      point font size rules pursuant to Title II’s implementing regulation, 28 C.F.R. §35.130(b)(7), to
      reasonably accommodate the disabling effects of Petitioner’s disabilities , her spcialized
      computerized assistive device, and the nature of Title II ADA briefing, with clear knowledge such
      restrictive unaccommodating page-limit would prevent Petitioner from reasonable opportunity to
      raise her Federal ADA claims and defenses in the State Court. See, Bartlett v. New York State Bd.
      of Law Examiners, 2001 WL 930792 (S.D.N.Y. 2001), more than 5000 trial exhibits over a 21 -
      day trial, and South Dakota Farm Bureau, Inc. v. Hazeltine, 13 A.D.Cases 136 (D.S.Dak.2002),
      aff’d on other grounds, 93-page Federal United States District Court opinion. 1

          Petitioner strongly objects to the already-occurred application of Supreme Court rules

and procedures to carry out hard-to-detect unlawful discrimination against her in connection

with this Notice to Invoke appellate review in violation of Title II of the ADA -- and therefore

now requests this Supreme Court to determine the constitutionality of its own jurisdiction to

redress unlawful disability discrimination by application of the ADA’s express federal conflict

preemption statute, 42 U.S.C. §12201(b) to strike down this Art. V, §3 provision of the 1980

Florida Constitution as applied to her and other “qualified individuals with disabilities” within

the definition of 42 U.S.C. §§12102(2), 12131(2) contrary to and in conflict with the rights,

remedies, and procedures of the ADA and the ADA’s federal conflict preemption rule

announced in Barry v. Burdines, supra.2 In sum, this Supreme Court’s jurisdiction, as presently

being applied to this disabled Petitioner, threatens to exclude her from Supreme Court appellate


  1
     See, also, Biddulph v. Mortham, 89 F.3d 1491, 1494 -95 (11th Cir. 1996) (holding Rooker -Feldman did not effect the Federal Court’s
jurisdiction in spite of the fac t the plaintiff had petitioned for a writ of mandamus on the same issue from the Florida Supreme Court ;
“‘[i]n Florida, mandamus is not awarded as a matter of right but at the court’s discretion,’” thus, “‘the state mandamus proceeding did not
afford [the plaintiff] the kind of ‘reasonable opportunity’ to raise his federal claim that would preclude our independent review”) (cited in
Cox v. Alabama State Bar, 2005 WL 1309024 (M.D.Ala. Jun. 1, 2005) (denying Alabama State Bar’s Motion for Summary Judgment in
case involving the Alabama State Bar’s refusal to provide bar applicant double-extra time reasonable accommodations).
   2
     An appellate court has jurisdiction to determine what its jurisdiction is. Sun Insurance Co. v. Boyd , 105 So.2d 574 (Fla. 1958);
Chapman v. Universal Underwriters Insurance Company , 549 So.2d 679 (Fla. 1 s t DCA 1989); Carter v. Dorman , 385 So.2d 740 (Fla.
3d DCA 1980).


                                                                     9
review of the denial of necessary reasonable accommodations throughout all Florida State

Courts and agencies below precisely because of the nature of her disabilities, leaving her no

State Court in Florida whatsoever with jurisdiction to enable her the kind of ‘reasonable

opportunity’ to raise her federal ADA reasonable accommodations claims.

          At all times mentioned herein for which Respondents and this Supreme Court have

subjected the disabled Petitioner to unlawful discrimination in violation of Title II of the ADA,

the Court knew or should have known that:

      “Autism is a complex developmental disability affecting an individual in the areas of social
      interaction and communication, rendering standard forms of communication like tone of voice,
      facial expression, and even spoken language unnatural and difficult to ma ster. Autism does not
      diminish Petitioner’s intelligence, or IQ, despite the disability being a multi -system illness with
      associated dysfunction and imbalances in the immune system, gastro-intestinal systems nutritional
      metabolism, and other aspects of the body,” http://www.drpodell.org/autism_treatments.shtml.
      Among other things, the effects of the disease include pain, stiffness, lack of mobility, inability to
      concentrate, lack of stamina, serious fatigue, under - and hyper-developed cognitive impairment,
      aural hearing impairments, attention deficits, abnormal sleep patte rns, and associated stress, in
      Petitioner’s particular case with serio us posttraumatic stress disorder and panic attacks upon
      situational triggers involving deprivation of necessary reasonable accommodations .3 The disease is
      little understood, particularly because its effects are not visible to the untrained observer. 4 Petitioner
  3
      Petitioner’s situational triggers are those connected to witnessing in her mother, Claire A. Day’s, self -immolation sui cide on her
father’s lawn on July 12 -13, 1994 in a public Equal Protection protest no one anticipated – over the refusal of the Cali fornia State
Courts to provide P etitioner necessary reasonable accommodations in an unconstitutional “best interests” grand parent visitation case in
which P etitioner’s mother was forced by the Courts to be her scribe -accommodation while working more than 80 hours a week to pay
for the court’s illegal surcharge. See, Title II’s implementing regulation, 28 C.F.R. §35.130(f). In sum, the situational trigger of PTSD
and panic attacks is any refusal of necessary reasonable accommodations.
   4
      Petitioner was and is (and Respondents and this Supreme Court were so informed and thus well knew), a “qualified individual
with a disability” as defined by 42 U.S.C. §12131(2), given that her multiple “impairments” were and are “substantially limiting in one
or more major life activities” of daily living, including by way of illustration without limitation, walking, talking, speaking, writin g,
organizing, thinking, standing, sitting, bending, stooping, lifting, sleeping, concentrating, remembering from short -term working
memory, suffering disabling fatigue and loss of stamina, along with severe and unpredictable neck, left arm, and/or right ankle pain,
and/or numbness, and/or tingling, with debilitating headaches, and certain posttraumatic panic attacks.
      “But You Look So Good!” People who have invisible autism symptoms have a unique set of problems. Discrimination against the
handicapped oft en begins with the thought that she looks just like me —that she’s normal —when in fact the handicapped person is in
some significant respect different. Prejudice, it bears recalling, includes not just mistreating another because of the difference of her
own outward appearance, but also assuming others are the same because of their appearance, when they are not.” Jankowski Lee &
Associates v. Cisneros, 91 F.3d 891, 895 (7th Cir. 1996) (housing discrimination).


                                                                    10
      adopts the entirety of her Motion for Reasonable Accommodations, Etc. herein as though fully set
      forth.

          Respondents, as well as this Supreme Court, all are “public entities” as defined in 42

U.S.C. §12131(1)(B).

      Since the outset, Respondents and this Supreme Court have clearly known “[t]he purpose of the
      ADA is ‘to provide a clear and comprehensive national mandate for the elimination of
      discrimination against individuals with disabilities.’ 42 U.S.C. §12101(b)(1),” Miller v. King, 384
      F.3d 1248, 1267 (11th Cir. 2004), and that the ADA supercedes any conflicting state law, Barry v.
      Burdines, 675 So.2d at 589, cert. denied 519 U.S. 966, 5 and is applicable to Florida State courts.
      Tennessee v. Lane, 2004 U.S. LEXIS 3386 (2004).6

          Respondents and this Supreme Court deliberately subjected Petitioner to numerous

instances of intentional and irrational discrimination and/or retaliation in violation of the ADA,

by refusing to reasonably accommodate her known disabilities in Florida State court, agency,

and law enforcement programs, activities, and services. To the extent the this Supreme Court

and Respondent Florida State judges7 and DHSMV enforced Florida’s traffic and driver’s


  5
    Mangin v. Westco Security Systems, Inc., 922 F.Supp. 563, 567 (Fla. M.D. 1996); Harding v. Winn -Dixie Stores, Inc., 907 F.Supp.
386 (M.D.Fla. 1995); DOJ Title II Technical Assistance Manual, §§II -2.1000 & II -1.4200. It is beyond dispute, the ADA preempts
numerous conflicting State statutes, e.g., T.E.P. v. Leavitt, 840 F.Supp. 110, 111 (C.D.Utah 1993) (invalidating that portion of the Utah
marriage statute which prohibited marriage of persons with AIDS and enjoined enforcement of the statute).
  6
     It is also beyond dispute that Title II applies to State judges in the administration of justice. Lane, 2004 LEXIS 3386:

       Title II, like Title I, seeks to enforce this prohibition on irrational discrimination But it also seeks to enforce a variety of
       other basic constitutional guarantees, infringements which are subject to more searching judicial review….
                                                                       ***
       It is not difficult to perceive the harm that Title II is designed to address. Congress enacted Title II against a b ackdrop of
       pervasive unequal treatment in the administration of state services and programs, including systematic deprivations of
       fundamental rights….The decisions…also demonstrate a pattern of unconstitutional treatment in the administration of
       justice.

Lane further points out that the Title II “…duty to accommodate is perfectly consistent with the well -established due process principle
that, ‘within the limits of practicability, a State must afford to all individuals a meaningful opportunity to be heard’ in its courts.” 124
S.Ct. at 1981.
   7
     Shotz v. Cates, 256 F.3d 1077, 1080 (11 th Cir. 2001) held that “A trial undoubtedly is a service, program, or activity within the
meaning of [42 U.S.C.] §12132.” Although Cates involved architectural accessibility, neither Title II nor its implementing regulations are


                                                                     11
licensing laws so as to obliterate this Court’s previous express ADA federal preem ption of

conflicting Florida laws decision in Burdines, and the ADA guarantees of “full participation,

equality of opportunity, independent living, and economic self -sufficiency,”8 42 U.S.C.

§12101(a)(8), such enforcement is illegal, in violation of the ADA, and contrary to Burdines

and Lane.

     Significantly, the final clause of Title II is a “catch-all phrase that prohibits all discrimination by a
     public entity.” 9 Bledsoe v. Palm Beach County Soil & Water Conservation Dist., 133 F.3d 816, 822
     (11th Cir. 1998).

          Since the outset, Respondents as well as this Supreme Court have violated clearly

established statutory and/or constitutional rights of which a reasonable person would have

known and/or palpably in excess of the jurisdiction of the Respondents, this Supreme Court, and

their judicial and court officials.10

     This is particularly so because the Florida State Courts System (which includes the Respondents and
     this Supreme Court) are parties to a Settlement Agreement with the United States of America, dated
     Jun. 20, 1996, 11 http://www.usdoj.gov/crt/foia/ fl11/txt (“SA”), signed by a former Chief Justice of
     this Court, which acknowledges that the ADA applies to the Florida State Courts System (¶2, SA),

limited to architectural accessibility. Both speak of discrimination in its broadest sense as well as the entitlement to benefits of a public
entity’s service, program, or activity; in this instance, as in Lane and Cates, hearings, trials, administrative hearings, appellate review.
   8
     42 U.S.C. §12101(a)(8).
   9
     Florida State judges in their official capacity are public entities, e.g., Mincewitz v. Parker, 2001 WL 256162 (D.Conn. 2001); Becker
v. Oregon, 170 F.Supp.2d 1061, 1066 (D.Ore. 2001), as defined in 42 U.S.C. §12131(1)(B) and “persons” under 42 U.S.C. §12203, given
that they are constitutional officers of the State under the Florida Constitution Art. V, §§1 & 5; State v. Lee, 121 Fla. 815, 819, 1 64 So.
536, 538 (Fla. 1935), and, therefore, in their official capacities are “public entities,” “instrumentalities of the State” as defined by 42
U.S.C. §12131(1)(B ).
   10
      The clearly established obligation of Florida State judges to obey the procedural and substantive requirements of the ADA is set
forth in the previously referenced Settlement Agreement as well as in Livingston v. Guice, 1995 U.S. App. LEXIS 29238 (4 th Cir. 1995);
Popovich v. Cuyahoga County Court, 276 F.3d 808 (6 th Cir. 2002); Lane, 200 4 U.S. LEXIS 3386; Burdines, 675 So.2d at 589 , cert.
denied 519 U.S. 966; Mangin, 922 F.Supp. 563; and Shotz v. City of Plantation, Fla., 2003 U.S. App. LEXIS 18527 (11 th Cir. 2003).
   11
      Respondent Sixth Judicial Circuit is also a party to its own 1993 Se ttlement Agreement with the United States of America,
http://www.usdoj.gov/crt/foia/fl13.txt , and respondent Largo, through contractual or other arrangements with Clearwater, is further in
privity to a 1993 law enforcement Settlement Agreement with the Uni ted States of America , http://www.usdoj.gov/crt/foia/
flaclearwater.html.


                                                                    12
       and further acknowledges “the continuing responsibility of the Florida State Courts System … to
       comply with all aspects of the ADA” (¶12, SA).

           In sum, this Supreme Court and Respondents in bad faith and for no legitimate

governmental purpose12 discriminated, retaliated against, and/or coerced Petitioner on account

of her disability and/or for exercising or attempting to exercise her rights under the ADA, all in

violation of 42 U.S.C. §§12132, 12203(a), (b), and Federal Regulations at 28 C.F.R. pt. 35.

                                           SUMMARY OF THE ARGUMENT

           The District Court of Appeal by its hybrid composite ADA decision,13 refused to follow

this Court’s previous decision in Burdines, 675 So.2d at 589, cert. denied 519 U.S. 966, or the

United States Supreme Court’s decision in Lane, 2004 U.S. LEXIS 3386.

       The decision of the District Court cannot be reconciled with the previous decision of this Court in
       Burdines, wherein this Court interpreted Title II of the ADA to require express federal conflict
       preemption of any Florida State law that conf licts with the mandatory rights, remedies, or
       procedures of the ADA , including the District Court’s mandate to provide the full measure of
       necessary reasonable accommodations, not merely interpret the ADA and Fourteenth Amendment
       to permit it to provide ju st a few inadequate accommodations as suggested on the face of the
       District Court of Appeals’ Apr. 21, 2005 Order.

                                            JURISDICTIONAL STATEMENT



  12
       Petitioner adopts herein as though fully set forth her Response to the Florida Bar Motion to Dismiss, Etc.
  13
     This Court has indicat ed the definition of “‘decision,’” as used under Florida’s constitutional jurisdictional sections, encompasses
not merely the result but also the entire opinion.” Hon. Anstead, Hon. Kogan, Hall, and Waters, The Operation and Jurisdiction of the
Florida Sup reme Court, NOVA L. Rev. Vol. 29 No. 3 (Spring 2005) , at p. 503 (citing Seaboard Air Line R.R. Co. v. Branham, 104
So.2d 356, 358 (Fla. 1958)). Given that this Court has never defined the nature of a hybrid composite Title II and V ADA decision, the
compos ite decision in this instance cannot be regarded as a true PCA, PCA citation, or PDA for purposes of the jurisdictional grant in
the Florida Constitution, given that such a construction would as a matter of law violate Title II’s implementing regulation, 2 8 C.F.R.
§35.150(a)(3), the First and Fourteenth Amendments, and Burdines, requiring by virtue of the ADA’s federal conflict preemption
mandate a written reasonable accommodations explanation such as the composite of App. “1,” “2,” “3,” an d “4” hereto. In this respect,
Petitioner more fully adopts herein as though fully set forth the content of her Notice to Invoke Discretionary Jurisdiction and Notice
of Appeal, together with all Appendices to the Notice of Appeal . This Supreme Court may take Judicial Noti ce of its own records.


                                                                    13
           This Court has discretionary jurisdiction to review the hybrid composite ADA decision

of the District Court of Appeal, that:

       (1) expressly and directly conflicts with a decision of this Court on the same point of law; (2)
       contains some statement to the effect that expressly declares one or more specified statutes valid or
       enforceable; (3) expressly construes a provis ion of the state or federal constitutions; and/or (4)
       expressly affects a class of constitutional or state officers.14

                                                            ARGUMENT

  A. Decision of the District Court of Appeal Expressly and Directly Conflicts with the Decision of this
     Court in Barry v. Burdines, 675 So.2d 587, 589 (Fla. 1996), cert. denied 519 U.S. 966 (1996).

           The District Court expressly misapplied this Court’s previous controlling decision in

Burdines, 675 So.2d at 589, cert. denied 519 U.S. 966, to allow Florida State Courts to exercise

unbridled “discretion” at will to disregard their affirmative mandatory obligations to comply

with obey the mandatory rights, remedies, and procedures of Title II and V of the ADA,15 based

on irrational discrimination against and/or exclusion of and/or retaliation against people with

disabilities.16 The decision of the District Court expressly and directly conflicts with the Federal

conflict preemption decision of this Court in Burdines.



  14
      Art. V. §3(b)(3), Fla. Const.; Fla.R.App.P. 9.030(a)(2)(A)(iv), (a)(2)(A)(i), (a)(2)(A)(ii), and (a)(2)(A)(iii), respectively.
  15
      “There is no requirement that the district court opinion must explicitly identify conflicting decisi ons.” The Operation and
Jurisdiction of the Florida Supreme Court, at p. 512 n.460. A “discussion of the ‘legal principles which the court applied supplies a
sufficient basis for a petition for conflict review.’” Ibid.; Ford Motor Co. v. Kikis, 401 So.2d 1 341, 1342 (Fla. 1981). The decision of the
District Court of Appeal discusses on the face of the Apr. 21, 2005 Order an application of the ADA’s reasonable accommodations
federal-mandate doctrine to Petitioner at the center of the conflict with this Suprem e Court’s opinion reaching a contrary express conflict
preemption result in Burdines .
   16
      By utilizing impermissible Florida law reasonable accommodations bifurcation -criteria in order to refuse to consider P etitioner’s
disability and medical documentation or provide her full measure of necessary reasonable accommodations, it is evident from (at
minimum) the less -than-Statewide 18 -point-font required for cognitive disabilities,                      http://www.flcourts.org/gen_public/
pubs/adati2.shtml , on the face of the decision (itself a misapplication of Burdines ), that the District Court of Appeal “expressly” and
“directly” misapplied the ADA conflict preemptive reasonable accommodations mandate under this Court’s previous decision in
Burdines . Such misapplication resulted in the District Court misperceiving and overlooking the               individualized facts concerning


                                                                     14
          This Court correctly interpreted the mandatory application of the ADA’s express conflict

preemption federal-mandate over such conflicting “discretionary” Florida law in Burdines, and

the Court should now reaffirm that interpretation by accepting discretionary review , and

reversing, quashing, and enjoining all of contrary the decisions and Orders of the District

Court,17 Circuit Court, County Court, and DHSMV below. In this instance, no conflict would

have arisen had the District Court of Appeal properly applied the rule of Burdines.

          This Court should take this important opportunity to exercise discretionary review to

remedy the unfair and incorrect unbridled discriminatory and/or retaliatory approach taken by

some of Florida’s lower trial and appellate courts and to harmonize and confirm the affirmative

mandatory obligations imposed upon Florida’s State Courts by the ADA.

  B. Decision of the District Court Expressly Declares Several Florida Traffic and Driver’s
     Licensing Statutes (Virtually Every Florida Statute) Constitutional Under The ADA.

          The District Court’s decision also contained some statement to the effect that one or

more specified Florida statutes are valid or enforceable, Cantor v. Davis, 489 So.2d 18 (Fla.

1986)) by failing to properly apply the ADA’s reasonable accommodations mandate, under

its misapplication of Burdines’ express ADA federal preemption principle to specified

conflicting Florida statutes and rules.18 By misapplying Burdines, the District Court


Petitioner’s autistic, learning, and cervical mobility associated disabilities and exact measure of reasonable accommodations necessary
under these particular disabilities to ensure petitioner received Constitutional ADA Access to all of the lower trial and appellate courts.
   17
      Under the decision of the District Court, the initial decisions of the Circu it Court and County Court also exercising unbridled
“discretion” in violation of the mandatory rights, remedies, and pr ocedures to which the disabled P etitioner was entitled under Titles II
and V of the ADA were upheld contrary to this Court’s previous dec ision in Burdines .
   18
      The District Court’s statement was necessary to the result reached by that Court, specifically, by determining that: “Concerning your
request for time and a half to double -extra time for time deadlines [to operate petitioner’s voice -recognition SPEECH-TO-TEXT assistive
device and otherwise reasonably accommodate the symptoms and characteristics of her associated autism, learning, and cervical mobility


                                                                   15
impermissibly held virtually every Florida constitutional provision, statute, and rule (including

several Florida traffic and driver’s licensing statutes and rules) valid because the District

Court of Appeal in exercising unbridled “discretion” lacked mandatory “State Court

competent jurisdiction” to comply with its affirmative mandatory obligations imposed by

Titles II and V of the ADA under Art. V, §4(b), Fla. Const.

          This Court should exercise its discretionary jurisdiction interpreted as a matter of right,

given that it would be incredible and significant to believe that no Florida law could ever be in

conflict with the numerous affirmative federal-mandates of the ADA across the spectrum of

disabilities of Florida’s disabled citizens or that a disabled petitioner would have no mandatory

“State Court of competent jurisdiction” in which to raise and vindicate her ADA issues, claims,

and/or defenses.

          This Court should take the opportunity to confirm the ADA’s application to the Florida

State courts in a definite and certain way , unequivocally establishing and confirming that

Burdines and Lane prevail to ensure Florida’s disabled citizens necessary reasonable

accommodations, modifications, and removal of barriers will be provided to guarantee them

Constitutional Access to all of Florida’s State agencies, law enforcement entities, trial, and

appellate courts and their programs, activities, and services.

     C. Decision of the District Court Expressly Construes a Provision of the State or Federal
        Constitutions.


disabilities], please understand we cannot provide blanket alterations from the rules of procedure ….[A]ny jurisdictional time limit, such
as notices of appeal and motions for rehearing, cannot typically be extended by the court” [App. 1, p. 1, Apr. 11, 2005 incorporated
Order].


                                                                   16
           By misapplying Burdines, 675 So.2d at 589, cert. denied 519 U.S. 966, as described

herein-throughout, the District Court expressly construed one or more identifiable provisions of

the State and Federal Constitutions, including Art. V, §4(b), Fla. Const. and the First and

Fourteenth Amendments to the federal Constitution enforced by the ADA. Lane, supra.

       The District Court’s decision “‘explain[s], define[s] or otherwise eliminate[s] existing doubts
       arising from the language or terms of the constitutional provision,’” Ogle v. Pepin, 273 So.2d 391,
       392 (Fla. 1973) (quoting Armstrong v. City of Tampa, 106 So.2d 407, 409 (Fla. 1958)), leaving
       Florida State Courts free to exercise unbridled “discretion” at will to irrationally discriminate
       against and/or exclude and/or retaliate against the disabled on the basis Florida’s State courts do not
       provide disabled people a mandatory “State Court of competent jurisdiction” to enforce the ADA as
       a matter of right.19

           This Court’s jurisdiction “may be exercised to say whether [such] an evolution in

constitutional law developed by the lower appellate courts is proper, 20 or to resolve [the]

doubt…expressly noted.” The Operation and Jurisdiction of the Florida Supreme Court, at p.

505 & n.413. In this instance, jurisdiction should be exercised to ensure that the ADA’s anti-

discrimination protections will be afforded to all disabled Floridians throughout all levels of

Florida’s State court system, by providing an effective and enforceable ADA corrective

remedial mechanism throughout the Florida State Court system, rather than abdicating the same

to Federal Court oversight.

  19
      The District Court’s resolution of existing doubts that Flor ida’s State courts can exercise unbridled “discretion” to irrationally
discriminate against and/or exclude and/or retaliate against the disabled by willfully disregarding the anti -discrimination mandates of
the ADA constitutes “an evolutionary development in the law…that expresses doubt about some legal point,” Ogle, 273 So.2d 391;
Dykman, 294 So.2d at 634 -635; Potvin v. Keller, 313 So.2d 703 (Fla. 1975) ( authorizing the Florida Supreme Court to exercise its
discretionary jurisdiction to the fullest extent necessary to comply with the Fourteenth Amendment to the federal
Constitution).
   20
      “A misapplication or misstatement of settled law can be viewed as an evolutionary development deserving correction….,” Id., at p.
505, including the District Court’s effecti ve eradication of the ADA’s anti -discrimination and anti -retaliation prohibitions under Burdines
and Lane. This misapplication is deserving of immediate correction by this Supreme Court to confirm on a Statewide basis that Florida’s
disabled citizens will be fully protected by Titles II and V of the ADA in accordance with Burdines and Lane.


                                                                     17
   D. Decision of the District Court of Appeal in this Case Expressly Affects a Class of
      Constitutional or State Officers.

       Lastly, the District Court of Appeal’s decision directly and exclusively “affect[s] the

duties, powers, validity, formation, termination[,] or regulation of a particular class of

constitutional or state officers,’” Spradley v. State, 293 So.2d 697, 701 (Fla. 1974), in such a

way that review would have an actual legal effect on a class of constitutional and/or state

officers -- specifically who among the Florida judicial officers, clerks of court, court marshals,

court legal counsel, human resource managers, traffic investigation officers, prosecutors, and

state agency officials possess enforceable authority under the ADA’s preemptive Titles II and V

Federal mandates to:

       1) make the medico-technico-scientific-legal determination of reasonable accommodations,
   modifications, and/or removal of transportation and communication barriers;
       2) make the determination what disability and medical documentation may be r equested, how
   and where it should be maintained, who is authorized to interpret what the disability and medical
   documentation means, and what guidelines or standards of analysis must be followed;
       3) consider and resolve an ADA grievance about reasonable ac commodations, modifications,
   and/or removal of barriers;
       4) determine the type, nature, curriculum, and frequency of education and training required of
   any decision maker over ADA issues, reasonable accommodations, modifications, and/or removal
   of barrier determinations, and ADA grievances over the same, and whether experts are required;
       5) determine whether, what type, and form of written statement of reasons is required for any
   grant or denial of reasonable accommodations, modifications and/or removal of barriers, and
   whether the ADA prohibits a PCA or PDA when such ADA issues are raised; and
       6) decide whether or not a review process, including the type of review process, must be
   provided for an incorrect partial grant or denial of reasonable accommodation s or ADA grievance,
   and whether that process must run to conclusion before any legal proceeding goes forward.




                                                  18
         In State v. Bowman, 437 So.2d 1095, 1095-1096 (Fla. 1983), this Court found

jurisdiction to determine the question was whether a particular duty fell to the Attorney General

or to the various state attorneys throughout Florida. This case is no different than Bowman.

         In this instance, the District Court of Appeal’s decision went so far beyond lacking an

enforceable standard to determine which constitutional or state officer possessed authority to

make decisions involving ADA issues, reasonable accommodations, and ADA grievances, as to

find Florida’s district courts of appeal and other lower courts paralyzed for lack of mandatory

“competent State Court” ADA “jurisdiction” on the ground it would take a Florida Supreme

Court reasonable accommodations determination before a Florida district court of appeal

would be able to exercise jurisdiction.21 See, Petitioner’s Response to Florida Bar Motion to

Dismiss, Etc., adopted herein as though fully set forth.

         Such a conclusion, absent this Court granting discretionary review interpreted as a matter

of right, threatens to throw Florida’s entire State Courts system into utter chaos by the absurdity

of the Supreme Court having to make ADA reasonable accommodation, modification, and

removal of barrier decisions before any case in any lower Florida State court could go forward,

or abdicating the same to Federal Court oversight.

                                                      CONCLUSION

            In the event the Court concludes it does not have mandatory appellate jurisdiction,

Petitioner respectfully submits this Court does have discretionary jurisdiction and should
  21
      “Concerning your request to file documents electronically, the Supreme Court of Florida has not implemented a rule of procedure
authorizing electronic filing for Fl orida’s appellate courts….We are not authorized to disregard those rules and would need to obtain
some special rule from that court.” [App. 1, p. 1, Apr. 11, 2005 incorporated order].


                                                                 19
exercise such jurisdiction interpreted as a matter of right to consider the important concerns

that have been raised involving clear and definitive standards for application of the ADA’s

anti-discrimination prohibitions to Florida’s State Courts system.

     Dated: August 8, 2005
                                         ____________________________
                                         Mary Katherine Day-Petrano, Pro se
                                         P.O. Box 3704
                                         Clearwater, FL 33767
                                         (727) 808-0446 (cell-mssg.)
                                         (727) 446-5586 (facsimile)
                                         e-mail: ponyhunterjumper@yahoo.com

                               CERTIFICATE OF COMPLIANCE

         Until someone at the Supreme Court assis ts and provides this autistic, learning,
cervical mobility language-communication disabled Petitioner with accessibility/an opportunity
to request her necessary reasonable accommodations, modifications, and removal of
transportation and communication barriers, including time-and-a-half to double-extra time and
font size and page limit accessibility to operate her L&H Voice Xpress voice -recognition
Speech-To-Text computerized assistive technology device and collate hard copy pleadings in
accordance with the mandatory affirmative requirements of Title II of the Americans With
Disabilities Act of 1990, Petitioner is unable to Certify Compliance with the 14-point font and
10-page limit rules. Petitioner did use New Times Roman.

                                      CERTIFICATE OF SERVICE

         I HEREBY CERTIFY that a copy of the foregoing re-filed Jurisdictional Brief has
been furnished to the following addressees by United States Mail this 8th day of August, 2005,
and the original filed with this Court by e-filing and mailed under separate cover.

                   Kathy A. Jiminez-Morales, Asst. General Counsel
                   State of Florida Highway Safety and Motor Vehicles
                   Neil Kirkman Building, Suite A-432
                   Tallahassee, FL 32399-0504

                   Pinellas County State Attorney
                   c/o Bernie McCabe

                                               20
P.O. Box 5028
Clearwater, FL 33758
Prosecuting Attorney

Alan. S. Zimmet, City Attorney
Tammy Bach, Assistant City Attorney
City of Largo
201 Highland Avenue,
P.O. Box 296
Largo, FL 33779-0296
Attorneys for City of Largo Police Department

George Waas, Senior Assistant Attorney General
 Office of the Attorney General
PL-01 the Capital
Tallahassee, FL 32399
Attorney for the State of Florida

Barry Richard, Esq.
M. Hope Keating, Esq.
Greenberg Traurig, P.A.
101 East College Avenue
Post Office Drawer 1838
Tallahassee, FL 32399-2300
Attorneys for The Florida Bar


Hon. Paul A. Levine, J.
Hon. Robert Morris, Jr., J.
Hon David A. Demers, Chief Judge
B. Elaine New/ADA Grievance
Gay Inskeep/ADA Grievance
Eve Walker/ADA Grievance
14250 49 th Street North
Clearwater, FL 33762
Respondent Lower Tribunals

                           _______________________
                           David F. Petrano, Esq.



                          21

				
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