Florida Constitution Law Outline

STATE CONSTITUTIONAL LAW

CONTENTS Declaration of Rights—Chapter 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-15 Introduction to Studying the Florida Constitution—Chapter 1 . . . . . . . . . . . . . . . . . 15-20 Separation of Powers—Chapter 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20-25 The Legislature—Chapter 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25-32 The Courts—Chapter 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32-56 Local Government—Chapter 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56-61 Table of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61-64 I.

DECLARATION OF RIGHTS A. The federal government is a government of delegated powers. The people of each state had all political power to begin with and delegated some of that power as federal powers under the U.S. Constitution. B. The federal Bill of Rights (BOR) is not a grant or delegation of power, but a limitation on existing federal powers C. The federal BOR has been made applicable to the state governments via the Fourteenth Amendment’s Due Process Clause. D. The state Declaration of Rights (DOR) exists to: 1. protect rights not enumerated in the federal BOR (EX—Privacy); 2. elaborate and go further than the express protections afforded by the federal BOR (EX—the state requiring a speedy trial within 90 days instead of the federal 180); 3. and maintain an independent identity for the state from the federal government (the states came first). E. Traylor v. State (Fla. 1992) 1. Needs exist for a state DOR independent from the federal BOR. a. Each state has its own identity, history, and customs to uphold for its citizens. b. State protections existed before federal ones. c. State-level interpretations allow other states to experiment with alternative forms of government in other states. A federal interpretation would be binding on all states. 2. Federal and state BOR/DOR’s “serve distinct but complimentary purposes.” 3. The federal BOR acts as a floor; the state DOR’s cannot provide less protection, but may provide more protection. F. Michigan v. Long (1983) 1. “Independent and Adequate State Grounds” —If a state supreme court reaches a decision based on state interpretations only, and indicates clearly and expressly

that the decision is based solely on bona fide separate, adequate (i.e., doesn’t conflict with federal law), and independent state grounds, the U.S. Supreme Court doesn’t have jurisdiction to hear the case. a. This jurisdictional restriction exists to respect the sovereignty of the state governments and judicial systems. b. “If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate and independent grounds, we, of course, will not undertake to review the decision.” c. The Court ruled that the lower decision didn’t exclusively rely on alternative grounds, instead relying on federal Fourth Amendment cases like Terry v. Ohio. G. Basic Rights—Article I, Section 2 1.

All natural persons are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property; except that the ownership, inheritance, disposition and possession of real property by aliens ineligible for citizenship may be regulated or prohibited by law. No person shall be deprived of any right because of race, religion or physical handicap.

2. Article I, Section 2 constitutes the equal protection clause for the state of Florida. 3. This section overlaps with Section 9, substantive due process. a. Corporations are given similar protection through Section 9 rather than Section 2. Section 2 technically applies only to natural persons. b. Gulf Power Company v. Bevis (Fla. 1974)—“Failure to allow the utility the opportunity to earn a fair rate of return would violate the rights to due process, to just compensation for taking of property, and the right to possess and protect property.” 4. Shriners Hospital for Crippled Children v. Zrillic-Part I (Fla. 1990) a. Lorraine Romans died, devising family antiques and dishes to her daughter (Zrillic) while leaving the remainder of her estate as a charitable contribution to Shriners. b. Zrillic requested that a circuit court avoid the charitable devise per Florida Statute § 732.803. c. Shriners and copersonal representatives of the estate asserted an affirmative defense that § 732.803 violated the equal protection provisions of the constitutions of the US and Florida. d. The court uses the plain meaning of the clause to reach the conclusion that the right to devise property is a property right protected by the Florida Constitution. (1) Ownership, inheritance, disposition and possession of property is expressly denied as a property right to aliens ineligible for citizenship. (2) Property rights in the US and Florida rest on an express constitutional foundation rather than the old English common law. e. Limitations on constitutionally protected rights still must be reasonably necessary to secure the health, safety, good order, and general welfare. f. Section 732.803 is not reasonably necessary because statutes that restrict charitable gifts were created in feudal England as part of a political power struggle between the King and the established church. The need for the statute is not applicable to contemporary society and doesn’t reflect the needs and desires of contemporary society. g. It is unreasonable for the state legislature to presume that all family members are dependant or in financial need of a devise that otherwise would have been a charitable gift. h. The Florida Constitution and Probate Code still protect those who may be dependent in other provisions: homestead exemptions for real and personal 2

property, coverture restrictions, elective shares, personal property exemptions, and protections against fraud, duress, mistake, and undue influence. i. Section 732.803 is therefore unconstitutional. j. A statute limited devises to charitable organizations. If a person died within 6 months of expressly devising to a charitable organization, the devise was void. k. The public policy reason for the statute was to prevent organizations from soliciting devises from dying people at their family’s expense. l. The property clause of Article 1, Section 2 was interpreted to mean that a person has a constitutional right to dispose of property by devise. m. The specific exception for aliens carved out of Article 1, Section 2 implied that the exceptions (including disposition of property) WERE applicable to non-aliens or qualified aliens. 5. Equal Protection Overlap—“No Person Shall Be Deprived of Any Right Because of Race, Religion or Physical Handicap.” a. Schreiner v. Mckenzie Tank Lines, Inc. (Fla. 1983) (1) Issue—Whether Article I, Section 2’s Deprivation Clause only acts to protect individuals from government action or whether it protects against government AND private action against an individual where no government action exists. (2) The DCA ruled that state (government) action is required, similar to federal claims under the 14th Amendment’s Equal Protection Clause and certified the question to the Florida Supreme Court. (3) Fla. ruled that state action is required before relief can be granted under Article 1, Section 2 of the Florida Constitution, affirming the DCA. (4) The Framers of the Florida Constitution didn’t intend for Article 1, Section 2 to have a broader application “than the related provision of the Fourteenth Amendment to the United States Constitution. (5) McKenzie Tank Lines employed Schreiner and fired him after having 3 epileptic seizures. (6) Fla. cites Shelley v. Kraemer—the equal protection clause of the Fourteenth Amendment “erects no shield against merely private conduct, however discriminatory or wrongful.” (7) Three parts to Article I, Section 2: - Equal Protection Clause—“All natural persons are equal before the law…” - Part 2 (identifies the inalienable rights of Florida citizens)—“which are . . . property…” - Deprivation Clause—“No person shall be deprived of any right, etc. (8) Transcripts of the Constitutional Revision Commission’s meetings show no intent to apply Article I, Section 2 to private action. (9) A statutory right exists protecting Schreiner from dismissal due to a physical handicap by a private employer. See § 23.161-167. (10) Article 1, Section 2 claims require state action before a remedy under that provision may be given by the courts. (11) The legislative history didn’t indicate a desire to expand Article 1, Section 2 beyond state action. (12) Statutory COA’s currently exist to protect against similar private action (23.161-167). (13) The statutes may go BEYOND constitutional limitations. The constitutional limitations act as a floor on permissible behavior.

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6. Distinctions From Federal Equal Protection Analysis: “All Natural Persons are Equal Before the Law.” a. Rollins v. State (Fla. 1978) (1) A Florida statute made it a first degree misdemeanor for owners and employees of billiard parlor to allow people under age 21 into the parlor (with a couple of exceptions). (2) The Petitioner was a billiards parlor. He claimed that the statute violated due process and equal protection because it didn’t proscribe similar activity in what the statute called “bona fide bowling establishments” with pool tables. (3) Fla. ruled that the statute violated the equal protection clause of Article I, Section 2. - “For a statutory classification to satisfy the equal protection clause . . .it must rest on some difference that bears a just and reasonable relation to the statute in respect to which the classification is proposed.” No differences between billiards played in a billiard parlor and billiards played in a bowling alley (a bona fide bowling establishment) to warrant the distinction imposed by the statute. - The only possible difference can be the serving of alcoholic beverages, but “there can be no rational basis for permitting a bowling alley containing a cocktail lounge to admit minors without complying with the restrictions imposed by [the statute], while subjecting a neighboring billiard parlor serving no alcoholic beverages to penalty. - The court used the terms “just and reasonable relation”, “valid and substantial reason”, “rational distinction” and “rational basis”. (4) EP analysis—STEP 1: define the classification - Bona fide bowling establishments are NOT prosecuted under the statutes where billiards parlors ARE. (5) RBT—the statute must have a just and reasonable relation to the distinction. - The state purpose must be legitimate - The means (statute) must be just and reasonable/rational. (6) No connection between undesirables (the purpose) and the statute existed. Undesirables can just as easily be found in a bowling alley, where minors were permitted. b. Shriners Hospital for Crippled Children v. Zrillic—Part II (Fla. 1990) (1) The statute violated Article 1, Section 2 and the Fourteenth Amendment. - All statutory classifications that treat one person or group differently than others must appear to be based at a minimum on a rational distinction having a just and reasonable relation to a legitimate state objective. - The statute created a class consisting of testators who die within 6 months after executing a will that devised property to a charitable org. - The classification is “underinclusive” because it does not affect charitable gifts made without the deliberation that the statute requires for devises. - No reason exists to think that testators need more protection against charities than against “unscrupulous relatives, friends, or associates. - The classification is “overinclusive” because it covers and voids many intentional devises and bequests by testators who were not unfairly influenced by the devisee. Also many devises are voided when other family members wouldn’t be adversely affected.

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The classification therefore does not draw a rational distinction between the two classes and is neither just nor reasonably related to a legitimate governmental purpose. (2) The state interest/purpose was legitimate, but the means (statute) were not just and reasonable. - legit. state purpose—ensure that the testator properly deliberates the devise; protect against unscrupulous organizations, friends, or associates. - No just and reasonable relation—over and underinclusiveness PLUS the statutory 6-month period does not insure that devises will be made with the proper deliberation. (3) McDonald Dissent - The legislature determined that the 6-month period was appropriate, which does have a rational basis, even thought it isn’t perfect. - The legislature should be deferred to. - Because the daughter had been expressly disinherited, the court was probably swayed. - Another case might apply correctly. -

H. Right to Assemble—Article 1, Section 5 1.

The People shall have the right peaceably to assemble, to instruct their representatives, and to petition for redress of grievances.

2. This right is subject to reasonable governmental regulation, but is analyzed under the First Amendment to the Federal Constitution. I.

Right to Work and Right to Bargain Collectively—Article 1, Section 6 1.

The right of persons to work shall not be denied or abridged on account of membership or nonmembership in a labor union or labor organization. The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged. Public employees shall not have the right to strike.

2. Hillsborough County Governmental Employees Assn. V. Hillsborough County Aviation Authority (Fla. 1988) a. A statute (447.309(3)) provided that collective bargaining agreements not become effective unless and until the appropriate governmental body makes amendments to the civil service rules so as to eliminate any conflict between the agreement and the rules. b. The parties reached a collective bargaining agreement that the HC Civil Service Board refused to amend its rules regarding certain provisions of. c. Another statute (447.601) could have been construed to mean that the rules are superceded by the bargaining contract when conflict exists. d. The court addressed the conflict between Article 1, Section 6, which provided for the right to bargain collectively and Article III, Section 14, which authorizes the legislature to create local civil service systems for local government employees through civil service boards. e. The Board argued that 447.309(3) gave the Board power to reject any agreement’s provision that conflicted with existing civil rules. The GEA argued that the right to bargain collectively is stifled by the statute if the Board can arbitrarily strike down any potion of a collective bargaining agreement. f. It is unclear from the legislative history whether 447.601 should apply. Statute 447.309(3) clearly applies, however, because it was intended to control conflicts between civil service laws, ordinances and rules.

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g. The court then held that 447.309(3) unconstitutionally abridged the right to bargain collectively. (1) Both constitutional provisions exist to protect public employees and their right to bargain collectively. (2) The civil service system provision, as applied through 447.309(3), abridges the right to collectively bargain for public employees by giving the boards veto power over agreements. (3) The right to collectively bargain is a fundamental right that can only be abridged upon the showing of a compelling state interest, which the Board has not demonstrated in this case. (4) Uniform personnel administration is not so compelling as to warrant the abridgement of a fundamental right. (5) Less intrusive means of accomplishing equal pay for equal work exist than giving boards an all-out veto power. h. Both constitutional provisions were harmonized by showing that both existed to protect public employees. i. The statute conflicted with the constitution as applied, but was constitutional on its face. j. The Board was forced to change its rules. k. Overton Dissent: (II) Weakening the Civil Service Board adversely affects all public employees. J. Prohibited Laws—Article 1, Section 10 1.

No bill of attainder, ex post facto law or law impairing the obligation of contracts shall be passed.

2. Obligation of Contracts a. Pomponio v. The Claridge of Pompano Condominium, Inc. (Fla. 1980) (1) Florida construes constitutional provisions more protectively than federal provisions by being deferential to a federal interpretation of a similar provision while stating that it is not bound by the federal interpretation to accommodate a local circumstance. (2) This case dealt with a statute (718.401(4)) that required rent to be deposited at the registry of the court during litigation involving obligations under a condominium lease. (3) Claridge and several unit owners sued the developer of the condo and the lessors of a 99-year lease in the condo. (4) The trial court granted Claridge’s motion to have rents deposited into the registry per the statute, over the developer and lessor’s objections. (5) The court looks to federal Contract Clause cases because the framer intent regarding the Florida clause was obscure. (6) The court identifies the Obligation-Remedy Test from the Supreme Court’s decision in Home Building and Loan Assn. V. Blaisdell (1934) - The legislation must address a legitimate end and the measures taken must be reasonable and appropriate to that end. (7) The court then identified the Supreme Court’s holding in United States Trust Co. v. New Jersey (1977). - A legislative impairment to a K may be constitutional if it is reasonable and necessary to serve and important public interest. - Legislation is not “necessary” if the legislature could have adopted alternative means of achieving the goals. (8) Allied Structural Steel Co. v. Spannaus (1978)

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Severity of the legislative impairment is another factor to consider. Minimal alteration of a contractual obligation may end the inquiry at the first stage. Severe impairment will push examination toward the nature and purpose of the state legislation. (9) The statute acts as an impairment to the contract (lease) by depriving the landlord of rents, in effect operating as a term of the K that the landlord never bargained for. (10) The purpose of the statute is to protect rents from being withheld while litigation is pending and to have funds to pay for maintenance, taxes, and utilities for the condo. (11) The purpose and means of the statute favor preservation of the K instead of upholding the statute (the statute is unconstitutional). - The statute is not the least restrictive means possible (less intrusive means exist). The statute could permit disbursement of the funds upon a showing of hardship or need. (12) The state courts may interpret a state constitutional provision more broadly than a similar federal provision. (13) The court looks at federal cases first so as to ensure that they provide AT LEAST as much protection as the federal courts. 3. Ex Post Facto Laws a. Dugger v. Williams (Fla. 1991) (1) Certified Question was whether an amended statute, effective on 10/1/86 constituted an ex post facto law as applied to prisoners convicted of capital felonies prior to the statute’s effective date. (2) Williams was found guilty of 1st -degree murder in 1976. In 1987, his request for executive clemency was denied. He appealed, arguing that the statute (before the 1986 amendments) entitled him to a recommendation for clemency from the DOC. (3) The law as amended, however, no longer applied to capital felons like Williams and changed the mandate on the DOC from shall to may recommend. The DOC refused to grant Williams the recommendation, adhering to the most current version of the statute. (4) Two-part test for to determine if a law is ex post facto: - the statute is retrospective in effect; AND - It diminishes a substantial substantive right the party would have enjoyed under the law existing at the time of the alleged offense. (5) A violation may occur if the legislature diminishes a state agency’s discretion to award an advantage to a person expressly protected by the ex post facto provision. (6) A violation may therefore occur if a person is denied the same level of access to a legal advantage that existed at the time the criminal offense was committed. (7) The law is retrospective in effect since it expressly applied to inmates in custody on or after 7/1/87. (8) Without the DOC recommendation and a waiver from the Governor and three members of his cabinet, a capital felon cannot be heard by the Governor and his Cabinet for executive clemency under the statute. (9) An ex post facto violation exists because Williams has no possibility whatsoever of obtaining executive clemency, which he did have under the pre-1986 statute. -

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(10) The trial court must determine if Williams met the pre-1986 requirements for the statute. If so, Williams is entitle to a writ of mandamus ordering the DOC to provide the recommendation. K. Substantive Due Process—Article I, Section 9 1.

No person shall be deprived of life, liberty or property without due process of law, . . .

2. Florida has not abandoned using substantive due process analysis on economic regulatory issues, unlike the federal courts. 3. L. Maxcy, Inc. v. Mayo (Fla. 1931) a. A Florida statute prohibited the arsenical spraying of citrus trees (arsenic spraying increased the sugar content of fruit, making it mealy and pulpy). b. Arsenic also made fruit mature faster, creating a bigger crop and a time of year when demand for fruit was higher. c. The Petitioners/Complainants were grove owners who believed that they had a constitutional right to spray with arsenic for the protection of their property. d. They argued that the prohibition against arsenic spraying amounts to a deprivation of property (crops lost to pests) without due process of law and a denial of EP. e. Arsenic spraying can be employed to have 2 effects: (1) Give unscrupulous growers the power to present low-quality (taste) fruit that appears normal (an effect of arsenic spraying), OR (2) to spray for pests. f. It is up to the legislature to prohibit practices with bad consequences, even if it infringes on innocent consequences occurring during the practice. g. EP analysis: - Purpose—valid/legitimate - Means—reasonable h. The legislature wanted to protect consumers and the reputation of Florida citrus. i. At that time, arsenic may have been the most effective spray, however. j. Maxcy wanted to use the spray for a legitimate purpose (pest control) at lower levels. k. The Court ruled that the purpose was legitimate, and that the means reasonably achieved the purpose. (1) Preventing all use of the spray prevented legitimate users of the spray as well, BUT the state did not have the ability to police the use of the spray to achieve the purpose of the statute. (2) The Court ruled that the statute was a legitimate use of the legislature’s police power. Statute’s Umbrella Covers Legit. and Illegit. Uses

Illegitimate: unlawful conduct (spraying to mature crops early) STATUTE UPHELD 4. State v. Saiez (Fla. 1980)

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Legitimate: lawful conduct (kill pests)

a. A statute made it illegal to possess an embossing machine (creates raised lettering and used primarily to make credit cards). b. The defendant moved for dismissal—the statute was vague and overbroad; also violated Substantive DP. c. The court disagreed with the vagueness argument. d. Substantive DP: (1) Possessing embossing machines can also be used for a valid purpose. (2) The purpose of the statute is legitimate. (3) The means used to achieve the purpose is NOT reasonable, however. - The statute unreasonably interfered with legitimate conduct that involved using the machines.

The Statute’s Umbrella Covers Legit. and Illegit. Uses

Illegitimate: Legit: Use of the machines Use of machines to make false credit to make other cards. Cards. STATUTE HELD UNCONST. 5. Lite v. State (Fla. 1993) a. FSC reviewed a statute that required the revocation of a person’s drivers’ license once that person had been convicted of possession, sale, trafficking or conspiracy to possess, sell, or traffic a controlled substance. b. Trial Court- found the subsection of the statute unconstitutional (violated SDP and EP under Fla. and federal). c. DCA reversed. d. FSC upheld the DCA decision. (1) Test: “[S]tate statute must bear a reasonable relationship to a permissible legislative objective.” (2) The purpose is legitimate: fighting drug use. (3) The means are rationally related: the statute will reduce the mobility of convicted substance abusers/sellers/traffickers. e. Lite argued that the statute will result in revocation of a license even though the use of the license wasn’t related to the conviction, resulting in an arbitrary use of police power. (1) No relationship need exist between the punishment and the offense itself. (2) Having a license is not an interest in property, but a privilege that can be regulated if pursuant to a legitimate legislative goal. 6. Dept. of Insurance v. Dade County Consumer Advocate (Fla. 1986) a. ISSUE: Whether a statute that prohibits an insurance agent from reducing the amount of the commission he or she will earn from selling insurance violates SDP. b. The statute prohibited insurance agents from rebating any portion of their commissions to their customers. c. No reasonable relationship existed between the statute and any legitimate state interest.

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(1) Insurance agents do not affect the net insurance premium, so are unrelated to any increase or decrease in insurance premiums. d. Boyd Dissent (1) FSC do not have authority to determine the degree to which statutes serve the public interest. (2) The legislature had a legitimate purpose in mind or it wouldn’t have passed the act. The courts are not in a position to second guess the legitimacy of legislation. L. Imprisonment for Debt—Article 1, Section 11 1.

No person shall be imprisoned for debt, except in cases of fraud.

2. Faircloth v. Faircloth (Fla. 1976) a. A divorce court ruled that petitioner pay certain amounts pursuant to a divorce proceeding. b. He was brought up on contempt charges for not paying on the ruling. c. If he didn’t pay within two days, he would be sent to jail. d. He appealed, stating that the judge must affirmatively find that he has the ability to pay before sentencing him to prison. e. If he is capable of paying and refuses, jail is appropriate; if he isn’t capable of paying, then he can’t go to jail. f. In any event, an affirmative finding by the court either way is required. (1) The petitioner presently has the ability to comply with the order and willfully refuses to do so –OR(2) The petitioner previously had the ability to comply, but divested himself of that ability through his fault or neglect designed to frustrate the intent and purpose of the order. g. The burd3en is on the party in default to prove that: (1) He does not have the present ability to pay –AND(2) That the inability is not due to his fault or neglect, but to circumstances beyond his control that intervened since the final decree. h. Although he failed in this burden, the trial court erred by not making an affirmative finding. M. Search and Seizure—Article I, Section 12 1.

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. The right shall be construed in conformity with the Fourth Amendment to the United States Constitution, as interpreted by the United States Supreme Court. Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the Fourth Amendment to the United States Constitution.

2. State v. Hume (Fla. 1987) a. An under cover cop recorded his conversation with Hume electronically (bug). b. The Court ruled that it was a legal search/seizure and not unconstitutional eavesdropping. (1) No different result was achieved by the bugging than if the officer had written notes of the conversation down. (2) This method was more accurate.

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(3) The US Supreme Court ruled in a similar case that an officer’s wearing a bug was ok. c. Dissent—the Supreme Court’s opinion was only a plurality decision and not binding law. L. Administrative Penalties—Article I, Section 18 1.

No administrative agency shall impose a sentence of imprisonment except for the Department of Military Affairs in an appropriate military tribunal, nor shall it impose any other penalty except as provided by law.

2. Broward County v. La Rosa (Fl. 4th DCA 1986) a. The Broward County Human Rights Board was created by a local ordinance to investigate and hear claims of discrimination. b. The ordinance gave the Board power to award damages for humiliation and embarrassment. c. Smith filed a complaint against La Rosa based on housing discrimination. d. The Board awarded $4000 in damages and $5000 in attorney’s fees to Smith. e. La Rosa filed suit, stating that it was an unconstitutional penalty by the administrative agency. The lower court found that it was. f. The DCA ruled that it was a penalty: (1) The US Supreme Court has ruled that a penalty involves punishment, regardless of whether it comes from a civil or criminal action. (2) Several cases have held that local ordinances do not have the power to award money damages. The courts are usually responsible for awarding money damages only. (3) If damages or a penalty are to be assessed, the right to a trial by jury must be enforced, precluding an administrative tribunal. (4) The ordinance therefore violated Section 18. The DCA affirmed the lower court. M. Access to the Courts—Article I, Section 21 1.

The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.

2. Access to the court system is not violated if the restrictions are reasonable. 3. Fees, court costs, etc. have been invalidated if they operate to bar people from using the court system. 4. Kluger v. White (Fla. 1973) a. The plaintiff was precluded from a remedy by statute—the plaintiff could only recover from a car accident in court if she hadn’t bought insurance AND the damages exceeded $550. b. Her damages didn’t exceed $550, so she was precluded from suing. c. The statute was ruled unconstitutional because the legislature can only block access to the courts by offering a reasonable alternative means of remedy. d. The legislature hadn’t done so, unconstitutionally depriving her of access to the courts. N. Right to Privacy—Article I, Section 23 1.

Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.

2. Winfield v. Division of Pari-Mutuel Wagering (Fla. 1985) a. The Respondent obtained a subpoena for a bank to produce its customers’ bank records pursuant to a division investigation. b. The banks told the Petitioners. The Petitioners filed for injunctive relief from the subpoena, stating that it violated their right to privacy. 11

c. Circuit Court denied the injunction stating that probable cause existed, justifying the Division’s investigation into bank records. d. DCA affirmed, but certified the question to the Florida Supreme Court. e. The FSC affirmed: (1) the right to privacy is very strong, requiring a 2 part test to determine whether a governmental intrusion into a person’s privacy is constitutional (CGIT). (2) STEP 1—Does a reasonable expectation of privacy (to the bank records) exist? (3) STEP 2—Is the state’s interest in the intrusion (conducting effective criminal investigations) compelling and the least drastic means employed? f. The court ruled that a reasonable expectation of privacy exists, but that the state’s interest in intruding into that expectation was compelling and the least intrusive means were used. 3. Barron v. Florida Freedom Newspapers (Fla. 1984) a. Barron’s divorce proceeding records were sealed to protect Barron’s privacy (he was a high profile state senator). b. Evidence contained in the record included explicit evidence of Barron’s affair. c. ISSUE-Whether Barron and his wife may seal personal court records from the media. d. The individual’s right to privacy is not strong enough to warrant sealing their records. e. The BOP was on the Barrons to prove a need for closure. f. A strong presumption favors the openness of court records: (1) Prevents the courts from abusing their power. (2) Guarantees enforcement of individual rights. g. Closure is ok: (1) to comply with established policy set forth in the constitution; (2) to protect trade secrets; (3) protect a compelling governmental interest; (4) obtain evidence to properly determine case issues; (5) avoid substantial injury to third parties; (6) avoid injury caused by disclosure of matters protected by a common law or privacy right. h. The CGIT is required to override the presumption of openness OVER the CGIT used to protect privacy rights. i. #6 above did not outweigh the presumption of openness. 4. Abortion and Termination of Life Support. a. In Re T.W. (Fla. 1989) (1) TW was a 15 year-old girl who wanted an abortion. (2) A Florida statute required parental consent or a showing that a minor is sufficiently mature to make the decision herself. (3) TW’s mother was seriously ill and TW feared abuse by her father. (4) A guardian ad litem was appointed for the fetus (not TW), who opposed TW. (5) The trial court ruled for the guardian ad litem—parental consent required. (6) The DCA reversed and the guardian ad litem appealed. TW obtained the abortion during the appeals process with the DCA reversal. (7) The case was not moot because the case was subject to repetition in the public (issue of great public importance). (8) The federal courts no longer use the CGIT from Roe. If the government can justify regulating abortion by showing that a regulation does not pose an undue burden on abortion, it is a permissible regulation. (9) Florida provides more protection for abortion than the federal government, however—CGIT is required, even for a minor.

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- Article I, Section 23 applies to every “natural person”, including minors. - Minors, for other medical procedures, do not need parental consent. b. In Re Guardianship of Browning (Fla. 1990) (1) The legal guardian of Browning requested to have Browning’s life support discontinued. Browning had had a stroke and was brain dead. (2) Prior to her stroke, Browning had told friends in writing that she wouldn’t want to be sustained. (3) Her living will said that she didn’t want to be sustained. (4) The Guardian filed suit for an order requiring the hospital to discontinue. (5) The Right to privacy includes: - The right to self determination AND - The right to refuse medical treatment. (6) Because Browning was unable to exercise her right of privacy because of her medical condition, her guardian was authorized to exercise it for her. (7) Procedures must be followed to accurately determine the person’s will. - The patient must have executed any document purporting the patient’s desire knowingly, willingly, and without undue influence. - The patient must not have a reasonable chance of recovery so that the decision can be made by the patient. - The conditions expressed must be carefully considered. - State regulation of the exercise of self-determination is subject to CGIT. (8) Surrogate, proxy, guardian - Guardian—appointed by the court to be the patient’s representative. - Surrogate —not appointed; the person simply steps in to enforce the patient’s written instructions as they were given before the patient’s condition. - Proxy—not appointed; the person was selected by the patient (in writing) to make the decision for the patient. The proxy has more power than a surrogate. (9) Surrogates and Proxies, before exercising their power, MUST get certificates from 3 doctors (primary care and 2 specialists). Court approval is not necessary. (10) If no proxy is designated, and no writing exists, the court must appoint a guardian (if someone wants to step in). c. Krischner v. McIver, M.D. (Fla. 1997) (1) ISSUE—can a person get the help of a physician to commit suicide? (2) The patient hired an MD to create a pill that would painlessly poison the patient, who was dying from AIDS. (3) No right to commit suicide or to allow a person to assist in committing suicide exists in federal or Florida law. (4) Practical problems - Determination is required that the patient is mentally competent to make the decision. - Likelihood of abuse or mistake exists. (5) The interest of the state in preventing suicide/preserving life is compelling. It outweighs the right to privacy in CGIT. d. Department of HRS v. Cox (Fl. 2d DCA 1993) (1) A gay male couple wanted to adopt; a Florida statute prohibited such adoptions. (2) The DCA held that the statute was constitutional as against the right to privacy. The DCA held that a reasonable expectation of privacy didn’t exist because they disclosed that they were gay to the state willingly. - BS because the paperwork REQUIRED such disclosure to adopt.

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- The state therefore compelled disclosure. (3) The DCA held that the legislature should make policy instead of the courts. - BS because a court has to decide the constitutionality of legislative enactments eventually anyway. e. Matthews v. Weinberg (Fl. 2d DCA 1994) (1) Similar facts as Cox, but a lesbian couple wanted to become foster parents rather than adopting. (2) Foster parents are only temporary, so the process is subject to different HRS rules. (3) The DCA held that HRS’s policy/decision prohibiting gay couples from becoming foster parents violated the right to privacy, substantive due process, and equal protection. (4) A Florida statute delegated the power to set foster parent standards to HRS. (5) The rules set by HRS required a legal marriage if married, and other guidelines that were suggestive in nature. (6) The rules did not prohibit gay couples from becoming foster parents. (7) A supervisor at HRS said “I don’t know of any supervisor who would be willing to sign off on you as a gay couple.” (8) The statement was a Non-Rule Policy (policy enacted by habit or practice rather than official promulgation). (9) The FSC does not reach its decision on constitutional grounds: - Pursuant to a statutory delegation of power to HRS, HRS must formally promulgate rules (rules do not have statutory power, but are close). - The rules begin as informal policies. A non-rule policy is one that has not yet been formally adopted as a rule. - HRS (Matthews) pointed to a rule that they denied the applications based on. - Non-rule policies can be used, but that use is limited because the non-rule policy can never rise to the level of a rule as defined by the APA. Once it becomes as hard and fast as a formal rule, the policy is invalid until made a rule. - The non-rule policy in this case “crystallized,” becoming as hard and fast as a formal rule. Therefore, it was invalid. f. City of N. Miami v. Kurtz (Fla. 1995) (1) The city promulgated a rule requiring applicants for employment to certify that they didn’t smoke within the last year. (2) Smokers do not have a reasonable expectation of privacy. g. Jones v. State (Fla. 1994) (1) Jones and two other defendants were convicted of statutory rape. (2) Jones argued that the statutory rape law violated the girls’ right to privacy. (3) Standing was proper because they (the boyfriends) stood to lose from the outcome of the case and had no other avenue for preserving their rights. (??) (4) CGIT applied: - The girls had a reasonable expectation of privacy. - The defendants’ and girls’ interests—right to privacy with boyfriends/consent to sex; didn’t want to testify or prosecute the boyfriends. - State’s interests—protection of girls under the age of sixteen; prevention of teen pregnancy and the spread of AIDS. (5) The FSC ruled for the State—kids are too young to consent or make the decision on their own. (6) The FSC ruled that the State must protect children, and that that interest outweighs the right to privacy asserted by children.

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h. BB v. State (Fla. 1995) (1) A statute made it a crime for anyone (including another minor) to have sex with a person under eighteen. (2) The issue was whether sex between minors violates the statute. (3) CGIT failed (the statute was unconstitutional as applied): - Distinguished between exploitation in an adult-minor situation. The only state interest related to pregnancy and health. - The right to privacy outweighed the State’s interest in protecting minor’s health. O. The Taking of Property—Article I, Section 9 1. No person shall be deprived of life, liberty, or property without due process of law . . . . 2. Department of Agriculture v. Mid-Florida Growers (Fla. 1988) a. Citrus canker was discovered in a nursery that had sold to Mid-Florida. b. No canker was detected at Mid-Florida’s grove, but the Department decided to destroy (burn) all trees obtained from the source nursery and any other tree within 125 feet of such a tree. c. Two nurseries filed suit against the Department/State, claiming that the Department’s actions constituted a “taking” and required compensation. d. The Department argued that its actions were a constitutional exercise of its police power that didn’t demand compensation as a “taking.” e. The FSC ruled that despite the fact that it was an exercise of police power, it was a “taking” and due compensation. f. The trees were healthy and therefore had a value as property. g. Defn. “Taking”—any deprivation from the owner of all or most of the owner’s interest in the subject matter.

II. INTRODUCTION TO STUDYING THE FLORIDA CONSTITUTION A. Intro 1. State constitutions are limitations on the state’s inherent power to do just about anything. 2. The US Constitution is a listing of powers delegated by the states to the federal government (affirmatively given or relinquished from the states’ inherent power). a. Power over foreign affairs is an exception or inherent power of the federal government. b. The federal government can use any delegated power or other power necessary and proper to carry out a delegated power (necessary and proper clause constitutes another exception). 3. “States possess all powers, but only such powers as are within the limitations of the State Constitution and without the prohibitions of the federal Constitution.” Riddoch v. Washington (Wa.); see also Carroll v. State (Fla.). B. The Concept of the State Constitution 1. The State Constitution as a Limitation on Inherent State Government Power a. Peter v. Meeks (Fla. 1964) (1) The State deleted a section of Article VIII that said that “the powers, duties, and compensation of such county commissioners shall be prescribed by law.”

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b.

c.

d.

e.

(2) A taxpayer in Broward County sued tax collectors (county commissioners) by arguing that their statutory powers were no longer valid due to the deletion. - They argued that the constitutional provision gave the legislature the power to pass the statutes from which the commissioners got their power. Without it, the legislature was powerless to give any power to the county commissioners through statutes. (3) The FSC held that the state legislature had inherent power to do anything it wanted, including the passage of the county commissioner statutes. (4) The repeal of the constitutional provision didn’t affect the already existing inherent power of the state. Constitutional Provisions that Appear to be a Grant of Power to the State: (1) EX—“the state legislature shall have power to regulate the marketability of oranges.” Does that give the state legislature power to regulate tangerines? (2) Provisions worded as a grant only amount to a reaffirmation of the power that the state already has. The state would therefore have the power to regulate tangerines also (through the state legislature). Constitutional Provisions that Allocate Inherent Power (1) By allocating to different branches or departments, the state legislature limits those departments or branches to those allocations. (2) The legislature may change the allocation through its inherent power as it deems necessary. Self-executing and Non-self-executing Provisions (1) Gray v. Bryant (Fla. 1960) - The incoming governor filed a lawsuit to determine whether he had power to appoint circuit judges. - A constitutional provision said that the legislature “shall” provide for one circuit judge per 50,000 residents of that circuit. - A census had increased the population, requiring more circuit judges. - The governor-elect wanted permission to appoint judges. - ISSUE—Is the provision self-executing, meaning that the legislature need not act to increase the number of judge positions? - The FSC held that the provision WAS self executing—legislative action was not needed. - TEST—Has a sufficient rule been laid down in a provision (can the right or purpose of the provision be accomplished without the aid of the legislature)? - The legislature may still supplement the provision. - The intent of the provision’s drafters must be examined. The Formal Amending Process (1) 5 ways to amend the Florida Constitution: - Proposal by legislature—3/5 of both houses and majority approval by the voters. - Proposal by Constitutional Revision Commission - Tax and Finance Revision Commission—for tax and finance issues/provisions only. - Constitutional Convention - Proposal by Voter Initiated Process (Voter Initiative) (A) 8% of the population of Florida by 8% of the voters of each congressional district is needed to get a revision on the next general ballot.

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(B) The petition with the necessary number of signatures is sent to the SOS. (C) A majority of Florida’s voters approve or shoot down in the next general election. (2) Fine v. Firestone (Fla. 1984) - A proposal by voter initiative had made the general election ballot. - Fine sued to have the proposal removed from the ballot because it violated the one-subject requirement of the Florida Constitution. - The One-Subject requirement exists to prevent signer/voter confusion. Signers/voters may vote for one portion while not supporting the other. - Proposals must therefore only contain one subject/constitutional function that is affected by the proposal. - Proposals must also clearly state what specific portion or portions of the Florida Constitution are to be affected by the proposal. - The proposal in this case affected 3 or 4 “functions” of government, affecting several (6) provisions of the Florida Constitution. - TEST—“Proposal must have a natural relation and connection as component parts or aspects of a single dominant plan or scheme.” (not very helpful). (A) The proposal doesn’t have to be limited to one section of the constitution (location). The proposal DOES have to be limited to one function of the government. In any event, a proposal’s effect on several provisions must be taken into account when determining whether multiple functions are affected. (3) Askew v. Firestone (Fla. 1982) - A current provision prevented government employees from becoming lobbyists after leaving public office (prevented corruption) for a period of 2 years. - The legislature introduced a proposal to the ballot that would allow a state employee to lobby so long as he/she filled out a financial disclosure form. - The ballot title and summary to the proposal did not set out the chief purpose of the amendment so as to give the electorate fair notice of the actual change. - The proposal was invalid since it neglected to advise the public that there is presently a complete two-year ban on lobbying before one's agency and also neglect to inform the public that the chief effect of the amendment is to abolish the present two-year total prohibition. (4) Grose v. Firestone (Fla. 1982) - The legislature passed a proposal that the electorate subsequently passed, changing Article 1 § 12. - The proposal limited the FSC to cases interpreting the Fourth Amendment by the US Supreme Court (possible Separation of Powers issue too!). - The proposal carries certain procedural obligations: (A) The purpose must be stated succinctly (75 words or less); (B) The Title must be 15 words or less; (C) The proposal must be published in local newspapers. - These requirements provide notice and due process to the electorate.

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The FSC upheld the proposal even though it was worded to look like it was giving greater protection. It was actually, by adopting the weaker federal guidelines, giving less protection than before. - Grose sought to prevent the proposal by suing the SOS in Circuit Court for an injunction pulling the proposal from the ballot. - The FSC has less power to strictly scrutinize a legislative proposal as opposed to a voter-initiated proposal. (5) State v. Division of Bond Finance (Fla. 1973) - A 1970 Amendment to the Florida Constitution authorized the issuance of bonds without referendum approval so long as the bonds were used to pay for certain environmental purposes. - Old Sections Art. 7, §§ 11(a) and 12(a) required referendum approval. - The FSC ruled that the new provision simply carved out an exception to the old sections and upheld the Amendment. - A conflict between provisions must be read liberally (in pari materia) so as to harmonize them. - If this can’t be done, the new provision controls because it is the most recent expression of the voters’ will. (6) Folks v. Marion County (Fla. 1935) - Bonds are issued to finance government improvement works. - If invalidated for violating a state provision, the bond holders won’t be able to collect. - Circuit courts hold bond validation hearings before issuance of the bonds to determine whether the bonds violate any provisions. These holdings may be appealed. Once affirmed on appeal, they can never be attacked again. - The bonds in this case were refunding bonds (used to raise money to pay obligations due on an old bond issue). - The original bonds were issued by Marion County in 1919. - All of the property in the country was to be taxed to pay the old bonds off. - The Homestead Amendment prevented taxation of the first $5000 of a home’s assessed value (has since changed to $25,000). - ISSUE—can the state reduce the amount of security on a bond by passing the Homestead Amendment? - The FSC ruled that since a bond is a contract, the Homestead Amendment effectively impairs the obligation of bonds, impairing the obligation of contracts and violating the Florida Constitution. - The court only applied this ruling to the 1919 bond. Aids in Interpreting the Florida Constitution (1) City of Saint Petersburg v. Briley (Fla. 1970) - Pinellas County assessed ad velorum taxes to residents of Saint Petersburg for sanitary sewage facilities that the residents would never use (St. Pete has its own, non-county facilities). - The taxes would be used to provide sewage facilities to the residents of Pinellas County living in unincorporated areas. - Article VIII, § 1(h) of the Florida Constitution proscribes the use of taxes received from property located in a municipality “for services rendered by the County, exclusively for the benefit of the property or residents in unincorporated areas.” -

f.

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The FSC rejected the contention that a direct and primary benefit exist for the residents of the incorporated area under this provision. The FSC took a liberal stance, only requiring SOME benefit to the city/incorporated residents. - The effect on the ground water supply/county-wide health had an indirect effect on the residents of St. Pete at a minimum. - Constitutional Interpretation: (A) The Constitution is to be liberally construed to allow flexibility. Statutes are to be construed strictly because they can be more easily changed. (B) The intent of the Framers is also very important and must always be examined and effectuated. (2) Burnsed v. SCL Railroad Company (Fla. 1974) - The FSC addressed a JD issue. - 2 Constitutional Provisions— (A) Appeals (Art. V, § 3(b)(1)—mandatory appeal)—appeals from final judgments in death cases and FROM ORDERS of trial courts initially and directly passing on the validity of a statute. (B) Certiorari (Art. V, § 3(b)(3)—permissive appeal)—Certiorari can be taken from any interlocutory order passing upon a matter which upon final judgment would be directly appealable to the FSC. - Art. V, § 3(b)(1), to give ANY effect to § 3(b)(3), had to be read to only allow appeal from FINAL orders. - The FSC ruled that constitutional provisions had to be read to harmonize two provisions and to give effect to both. - The FSC read § 3(b)(1) to not apply to interlocutory orders, only final ones. - JD was therefore only permissive under § 3(b)(3), which specifically applied to interlocutory (non-final) orders. Certiorari must have to have been granted for JD to be proper. (3) State v. Town of Davie (Fla. 1961) - Ejusdem generis—where a general term is found in conjunction with a series of very specific terms, the meaning of the general term will be considered restricted by the more specific terms. - Art. V, § 4(2) gave permissive JD to the FSC to issue writs of quo warrento (by what authority—allows an official to assume a legal authority or contests the authority of an official’s action) when a state officer, board, commission, or other agency authorized to represent the public generally is named as the respondent. - The Petitioner sought to challenge the incorporation of the Town of Davie by a writ of quo warrento. - The FSC ruled that “state officer, board, or commission,” which preceded “other agency” modified the general term so as to apply only to state entities, not local (town) ones. - The FSC, therefore, had no JD to issue the writ. (4) Nichols v. State ex rel. Bolon (Fla. 1965) - Expressio unius est exclusio alterius—the expression of one thing is the exclusion of another. - Nichols won a local election, but a legislative enactment prohibited his running unless he had been a resident voter for at least one year. - Bolon sued to prevent Nichols from taking office. -

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Nichols claimed that a constitutional provision which prohibited convicted criminals from holding office excluded all other reasons for prohibiting people from holding public office. - The FSC ruled that the constitutional provision acted as a floor, allowing the legislature to impose even more restrictions if it saw necessary. - This doctrine must be applied narrowly. - The legislature has power to do anything it wants absent a clear prohibition. - The statute was upheld. - Dobbs, 56 S.2d 341—an example of the doctrine working. (5) State v. City of Saint Augustine (Fla. 1970) - An earlier provision of the Florida Constitution (prior to the 1968 version) required a majority of eligible voters in the area to approve bond issues. - In 1968, the provision was amended to only require a majority of voters voting to approve bond issues. - The new provision significantly relaxed the earlier requirement to accommodate lower voter turnout. - The FSC ruled that the most recent version superceded the older one, even though the legislature has passed the older one in the statute form in 1967. (A) A constitutional provision ALWAYS outweighs a statute. (B) Leaving the earlier provision out showed the Framers’ intent to change the law. (C) The constitutional provision was later in time, showing the most recent intent of the people. (6) Greater Loretta Improvement Association v. State ex rel. Boone (Fla. 1970) - § 849.093 allowed certain charitable, non-profit organizations to conduct bingo games. It was passed in 1967, so the 1885 Constitution applied. - The Circuit Court found the statute unconstitutional because it felt that “bingo” was consistent with “lottery” as used in Art. III, § 23 of the 1885 Florida Constitution. - The Florida legislature was empowered in 1879 to legalize and license the bingo-like game of keno (Overby v. State [1881]). It was therefore empowered in 1967 to legalize bingo. - RULE—Where a constitutional provision may well have either or several meanings, if the legislature has by statute adopted one, its adoption is legal. The legislature in this case determined that “bingo” did not fall under the term “lottery.” - Such a legislative construction will be followed unless manifestly erroneous. -

III. SEPARATION OF POWERS A. Intro (Article II, Section 3) 1. The power of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein. 2. This provision provides for SOP, but recognizes that the Constitution can create exceptions to the general rule.

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3. Toughest SOP problem is characterizing a particular power as appertaining to a branch of government. This problem usually appears in many actions taken by state or local governments. B. Encroachment by One Branch of Government on the Powers of Another Branch 1. Encroachment on Power of the Legislative Branch by the Judicial Branch a. Judicial Modification of the Common Law (1) Shands Teaching Hospital and Clinics, Inc. v. Smith (Fl. 1st DCA 1985); aff’d (Fla. 1986). - Shands sued Smith for payment of medical bills incurred by her husband, who died. - The trial court found that the common law imposes no liability on a wife for the necessaries of her husband; therefore the only way that a wife can be held responsible for the medical bills of her husband is by contract, which didn’t exist in this case. - This holding contradicted two DCA cases (2nd and 3rd), which held the wife responsible. - The 1st DCA affirmed, holding that in the absence of constitutional or statutory authority reflecting a change in established (common) law, the DCA’s do not have power to overrule the common law on their own. (2) Connor v. Southwest Florida Regional Medical Center, Inc. (Fla. 1996) - SWRMC sued Connor for payment of services rendered to her husband Kenneth, who died. - The FSC knocked the doctrine of necessaries out completely. - Neither spouse can be held accountable for the deceased spouse’s debt. - The old common law doctrine was struck down on EP grounds. - The FSC left it to the legislature over J. Overton’s dissent, which wanted to fashion a legitimate rule from the unwanted common law rule. b. The temptation a court may face to rewrite a statute in order to avoid holding it unconstitutional (1) Brown v. State (Fla. 1978) - A state statute prohibited the use of profanity, regardless of whether it was directed at a particular person. - Directing at a person would constitute fighting words, which would have been an exception to the First Amendment. - A court should not be allowed to construct/interpret a statute completely; when it interprets to some degree, it should do so only within the clear meaning of the statute. If that can’t be done constitutionally, the whole statute should be shot down as unconstitutional. - Reasons (A) The courts aren’t equipped to engage in the legislative process, leading courts to frequently uninformed decisions. i. can’t hold hearings. ii. admissible evidence is limited. iii. limited SOR (B) Court reconstruction may twist the legislative intent. - The statute was completely struck down as a violation of SOP. - Criminal statutes must be narrowly construed in favor of the accused. Less is at stake with civil statutes, so the courts have more power to liberally construe. (2) Town of Loxley v. Rosinton Authority (Ala. 1979)

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A statute allowed a town to expand its water, sewer, and fire services to areas outside of the town. - Loxley expanded into an area that Rosinton was authorized to provide services to by statute. - Rosinton sued to enjoin Loxley from the expansion. - Rosinton wanted the court to require Rosinton’s permission before Loxley could expand. - Rosinton argued that chaos and excess competition of municipal services would result otherwise. - Loxley argued that the statute gave Loxley the power to expand without limitation. - The ASC held that judicial interpretation in Rosinton’s favor would have crossed the SOP line. Loxley had clear statutory authority to expand its services outside its corporate limits. (3) Dade County CTA v. Legislature (Fla. 1972) - Dade County Classroom Teachers’ Association sued for a writ of mandamus that would require the legislature to enact standards or guidelines regulating the right of collective bargaining by public employees of the state. - The right of public employees to collectively bargain is set forth in Article I, § 6. It is therefore a fundamental right. - The FSC denied the petition for a writ of mandamus, indicating that it cannot compel another branch of the government from acting. - It noted, however, that if the legislative body failed to act within a reasonable time, the FSC would have to fashion the necessary guidelines to protect the CTA’s fundamental rights. 2. Encroachment on Power of the Legislative Branch by the Executive Branch a. Blood Service Plan Insurance Company v. Williams (Fl. 1st DCA 1966) (1) State Insurance Commissioner denied BSPIC’s application for a license to sell insurance in Florida. (2) BSPIC offered uncontested evidence that it met all of the statutory requirements for selling insurance in Florida. (3) The Commissioner denied the license for 2 reasons: - BSPIC doesn’t possess blood bank facilities; - Granting a license would have an adverse impact on the operation of the blood bank program in the state. (4) The FSC ruled that the Commissioner is not authorized to impose additional conditions and requirements as a prerequisite to granting a certificate of authority in Florida. (5) The Commissioner therefore exceeded his authority. His decision was reversed. b. State v. Florida Police Benevolent Association (Fla. 1992) (1) The Florida Legislature must approve funding of collective bargaining agreements even if the governor negotiated and approved them. (2) The legislature passed legislation that conflicted with the agreement. (3) The FSC ruled that only the legislature has the power to appropriate money. The FSC cannot require it to do so. (4) Dissent - The FSC’s reading of the statute completely ignores Article I, § 6, which gives public employees the right to bargain collectively. -

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If the legislature can effectively veto collective bargaining agreements, the constitutional right is meaningless. - The FSC’s decision conflicts with Hillsborough Aviation—official intrusion into the Article I, § 6 right requires a CGI, which hasn’t been met (Hillsborough is distinguishable because this case dealt with the legislature’s exercise of a constitutional power. Hillsborough dealt with a statute). c. Chiles v. United Faculty of Florida (Fla. 1993) (1) The legislature passed a law agreeing to fund 3% raises to members of the teachers’ union. (2) The legislature then passed legislation postponing the funds. (3) The legislature then postponed the raise altogether. (4) The FSC ruled that the legislature approved the agreement by its 1st enactment and was bound by the enactment as a K. (5) The legislature violated the right to K and the right to collectively bargain. 3. Encroachment on the Power of Executive Branch by the Judicial Branch a. State ex Rel. Dept. of HRS v. Sepe (Fl. 3d DCA 1974) (1) The trial court committed the defendant to HRS (an executive agency) for treatment. (2) The judge told the hospital how long and how to treat the patient/defendant (medication and name of treatment). (3) The patient/defendant petitioned for a writ of prohibition (removes or limits the jurisdiction of the lower court to prevent the court from exceeding its JD by taking certain action). (4) The DCA issued a Rule Nici (tentative ruling); if the lower court refused to remedy the problem, the DCA would make it a Rule Nici Absolute, taking the lower court’s jurisdiction away. 4. Encroachment on the Power of the Executive Branch by the Legislative Branch a. Jones v. Chiles (Fla. 1994) (1) A workers’ compensation judge was up for term renewal. (2) A judicial nominating commission was set up by statute to review the judge’s work and recommend renewal or termination to the Governor, who was bound to follow the commission’s recommendation. (3) The commission recommended renewal, but the Governor terminated the judge. (4) The judge filed for a writ of mandamus (forces a government official to perform a particular duty). (5) The Governor refused to renew because the authorizing statute violated SOP and the FSC agreed. - Workers’ Compensation Judges are members of the executive branch. - The legislature has no power to tell the Governor whom to appoint. - The Governor has supreme executive power under Article VI. - The Governor therefore has power to appoint the head of all executive agencies, and should have the same power for lower members of all executive agencies. 5. Encroachment on Power of the Judicial Branch by the Executive Branch a. In re Advisory Opinion to the Governor (Fla. 1968) (1) The Florida Constitution doesn’t have the case or controversy requirement of the Federal Constitution. The FSC can issue advisory opinions that constitute binding authority. -

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(2) Article VI, § 15 allows the Governor to remove officers for listed circumstances unless the officer can only be removed through impeachment. (3) The Governor wanted to suspend a circuit judge for incompetence. The judge had not met any of the enumerated causes for removal. (4) The FSC ruled that the judge couldn’t remove for a reason not listed in the statute. 6. Encroachment on Power of the Judicial Branch by the Legislative Branch a. Rich v. Ryals (Fla. 1968) (1) A Florida statute gave a neighbor the right to apply for an injunction when he/she suspected that their neighbor violated the statute. (2) The statute gave no discretion to the judge (EX—hardship exception or rezoning). The judge had to issue the injunction. (3) The legislature took the discretion away from the judge by using the term “shall,” which mandated a court’s grant of injunctive relief. (4) The FSC ruled that the term “shall” is permissive to a court only. The legislature doesn’t have authority to make a court do something without the court’s independent judgment. (5) SOP wasn’t violated by the statute, which the court upheld, by stating that “shall” really meant “may.” The FSC basically rewrote the statute. (6) The legislative intent must have been to legislate a constitutional statute, so the court did everything possible to keep the statute constitutional, even if it had to rewrite. C. Delegation of Power as a SOP Problem (Non-Delegation Doctrine ) 1. Legislative Delegation of Legislative Power a. The NDD normally arises where the legislative branch prescribes broad, almost ambiguous laws, and permits the executive branch, in its enforcement role, to provide the particulars. b. Such laws are usually struck down on the grounds that the elected representatives of the people (the state legislature), rather than the appointed bureaucrats (the executive branch), should make the substantive rules governing conduct. c. The NDD is federal in origin. See Panama Refining Co v. Ryan, 293 U.S. 388 (1935); Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). d. An Administrative Agency (AA) cannot make judicial decisions. It also cannot make decisions of a constitutional magnitude. A party can directly bypass an AA and file suit in court for constitutional issues. See Key Haven v. Board of Trustees of the Internal Improvement Fund (Fla. 1982). e. Delta Truck Brokers, Inc. v. King (Fla. 1962) (1) A statute involving the transfer of an automobile transport brokerage license prohibited the granting or transfer of a license if the applicant had engaged in the business without a license, had been convicted of or had proceedings pending regarding the unlicensed practice of automobile transportation. (2) The statute allowed an administrative agency (AA) to make its decisions regarding the issuance of the license according to the “public interest.” (3) Delta was an applicant. Evidence produced at the commission (AA) hearing indicated that Delta might have practiced without a license even though no conviction or legal proceedings existed. (4) The FSC held that the legislature may set the overall policy, leaving specifics to be filled in by the AA.

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(5) In this case, however, the guidelines were too broad, giving the AA unbridled discretion with no legislative standards. (6) The legislature must pass reasonably certain standards that guide the AA in the exercise of its power. (7) FEDERAL—Any “intelligible principle” that the legislature enacts passes NDD muster. (8) FLORIDA—far stricter standards in Article II, § 3. (9) The statute required a finding of a conviction or similar proceeding. The AA didn’t find either against Delta. Therefore, the AA decision was wrong. (10) The AA had no power to determine what the public interest is. That is the legislature’s job. f. Astral Liquors v. Department of Business Regulation (Fla. 1985) (1) A statute regulated the transfer of a liquor license. It allowed the license transfer to be denied within the discretion of the Division of Alcoholic Beverages when administrative charges were pending against the owner of the license or the current owner committed a crime. (2) The FSC ruled that the guidelines were reasonably certain enough to provide adequate guidance to the AA’s use of discretion. (3) More guidelines existed than in Delta. 2. Judicial Delegation of Judicial Power a. NDD issues regarding a court’s delegation to another branch of government are far less frequent than Legislative NDD issues. b. M.A.R. v. State (Fl. 5th DCA 1983) (1) A court made a condition of probation the defendant’s restitution of damages to the injured party AS DETERMINED BY HRS. (2) The DCA ruled that the court must determine the terms and conditions of restitution, not by HRS, an executive agency. The DCA reversed the trial court. c. Carnegie v. State (Fl. 2d DCA 1985) (1) The trial court departed from promulgated sentencing guidelines and asked the state attorney to prepare and submit written reasons for the departure. (2) The trial court then incorporated the state attorney’s reasons as its own, without independent judgment. (3) The DCA ruled that the trial court’s independent judgment is required before a departure from the guidelines is acceptable. The judge may depart, but more than a blanket acceptance of the state attorney’s reasons is necessary. (4) The court unconstitutionally delegated the determination of the reasons to the state attorney. III. THE LEGISLATURE A. Intro—Article III, Section 1 1. The legislative power of the state shall be vested in the legislature of the State of Florida. 2. The role of the legislature must be distinguished from that of AA’s (NDD). B. Constitutional Limitations 1. Subject Matter and Title Requirement—Article III, Section 6 a. Law—Every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title. No law shall be revised or amended by reference to its title only. Laws to revise or amend shall set out in full

25

the revised or amended act, section, subsection or paragraph of a subsection. The enacting clause of every law shall read: “Be It Enacted by the Legislature of the State of Florida:” b. Single Subject Limitation (1) “The purpose of the constitutional prohibition against a plurality of subjects in a single legislative act is to prevent a single enactment from becoming a ‘cloak’ for dissimilar legislation having no necessary or appropriate connection with the subject matter.” State v. Lee, 356 So. 2d 276 at 282 (Fla. 1978). (2) State v. Canova (Fla. 1957) - Canova wanted to take the state pharmacy exam. He argued that the current statute barring his eligibility to take the exam was unconstitutional because it dealt with pharmacists AND drug stores. - If the FSC declared the statute unconstitutional, the previous statute would become effective, and Canova would be eligible under that statute. - The FSC ruled that the 2 subjects, pharmacists and drug stores, created a board of pharmacy and regulated retail drug stores (not just their prescription drug aspects). - These two subjects had a common theme—pharmacies. - TEST—Whether all parts of the statute are naturally germane to a common subject (EX—pharmacies). This must be a common sense determination. (3) Santos v. State (Fla. 1980) - This case dealt with § 316.193(1) and (3), a criminal statute. - Two possible subjects—regulation of the use of public roads OR DUI. - Provisions (1) and (3) exist as revised by the revision commission. The constitutional limitation doesn’t apply to the statute as revised. - The legislature passed (1) and (3) separately. The revision commission subsequently modified it into its current form. - A court must look at the bills at the time they are passed through the legislature. Each was passed separately and under different titles. The harm avoided by the one subject requirement was therefore avoided. (4) State v. Johnson (Fla. 1993) - Two subjects in a statute were habitual offenders/career criminal prosecutions AND licensing of a private investigator/PI’s authority to repossess personal property. - The FSC ruled that the 2 subjects were completely unrelated. - The defendant was tried under the habitual offender portion. - The FSC remanded for a resentencing. - Reenactment of the whole code upon the legislature’s convening in May of 1991 cured the defect from that point forward. - Bad decision because curing the defect by reenacting doesn’t prevent the legislators from being confused AT THE TIME OF ENACTMENT. (5) North Ridge General Hospital v. City of Oakland Park (Fla. 1979) - The legislature passed an act annexing the land on which the hospital was located to the city. - The hospital sued to set the act aside, arguing that the act’s title gave no notice that the act would affect the hospital. - The title read: “A bill to be entitled An ac relating to the City of Oakland Park, Broward County; extending and enlarging the corporate limits of the

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City of Oakland Park by including previously unincorporated land into said corporate limits; providing an effective date.” - The FSC ruled that the constitutional title requirement was only that notice of the broad subject be given, not the specific object that the act would affect. - The title was specific enough by mentioning the inclusion of previously unincorporated land into Oakland Park. - SUBJECT—general purpose of the act. OBJECT—specific goals to achieve the purpose; one subject may have several objects. - TEST FOR DET’ING ONE SUBJECT SATISFACTION—Can an average person foresee that his interest MIGHT be affected by the proposed legislation? If so, the title is constitutional. c. Appropriation Bills—Art. III, Section 12 (1) Appropriation bills—Laws making appropriations for salaries of public officers and other current expenses of the state shall contain provisions on no other subject. (2) Appropriation bills are subject to a special “one subject” requirement—they can only deal with the payment of public officers’ salaries or other state expenses. (3) Appropriation bills are so important (funding public works) that they should receive their own section and title. (4) Appropriation bills are also very lengthy. Care must therefore be taken to prevent legislators from sneaking other provisions in. (5) Department of Education v. Lewis (Fla. 1982) - A statute provided funds for post-secondary education so long as the schools didn’t allow their facilities to be used for certain organizations that engaged in speech dealing with sex between unmarried couples. - The appropriation bill therefore contained 2 subjects—appropriations and muzzling groups (governing schools by controlling their funding). - TWO-PART TEST FOR DET’ING A VIOLATION OF THE APPROPRIATION BILL REQUIRMENT—Does the bill change the law on any subject other than appropriations? If so, invalid. Does every qualification or restriction of the bill directly and rationally relate to the purpose of the appropriation to which the qualification or restriction applies? If not, invalid. - The statute in this case violated the first provision of the test by attempting to make substantive policy on the governance of postsecondary educational institutions. - The statute also violated the second provision of the test by not being directly and rationally related to the appropriation of state funds to postsecondary educational institutions. d. When Laws Take Effect—Article III, Section 9 (1) Effective Date of Laws—Each law shall take effect on the sixtieth day after adjournment sine die of the session of the legislature in which enacted or as otherwise provided therein. If the law is passed over the veto of the governor it shall take effect on the sixtieth day after adjournment sine die of the session in which the veto was overridden, on a later date fixed in the law, or on a date fixed by resolution passed by both houses of the legislature. (2) Laws take effect on the date listed in the statute or on the sixtieth day after the adjournment of the legislative session in which the statute was enacted.

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(3) Article III, section 8 discusses the governor’s ability to veto—not signing for 7 days is the same as signing; the period for review may be extended to 15 if the legislature recesses for more than 30 days or adjourns within the 7 day period. (4) Opinion of the Attorney General (7/13/73) - The Attorney General gave legal advice to a state senator. - A bill should have been effective in 1973 (as listed in one part), but another part said 1974 (mistake in drafting). - An obvious typographical error can be corrected by a court as a tool of statutory construction. - The intent of the legislature must be identified and followed. e. General Laws, Special Laws and General Laws of Local Application—Article III, Sections 10 and 11 (1) Section 10—Special laws.—No special law shall be passed unless notice of intention to seek enactment thereof has been published in the manner provided by general law. Such notice shall not be necessary when the law, except the provision for referendum, is conditioned to become effective only upon approval by vote of the electors of the area affected. (2) Section 11—Prohibited Special Laws— (a) There shall be no special law or general law of local application pertaining to: (1) election, jurisdiction or duties of officers, except officers of municipalities, chartered counties, special districts or local governmental agencies; (2) assessment or collection of taxes for state or county purposes, including extension of time therefor, relief of tax officers from due performance of their duties, and relief of their sureties from liability; (3) rules of evidence in any court; (4) punishment for crime; (5) petit juries, including compensation of jurors, except establishment of jury commissions; (6) change of civil or criminal venue; (7) conditions precedent to bringing any civil or criminal proceedings, or limitations of time therefore; (8) refund of money legally paid or remission of fines, penalties or forfeitures; (9) creation, enforcement, extension or impairment of liens based on private contracts, or fixing of interest rates on private contracts; (10) disposal of public property, including an interest therein, for private purposes; (11) vacation of roads; (12) private incorporation or grant of privilege to a private corporation; (13) effectuation of invalid deeds, wills or other instruments, or change in the law of descent; (14) change of name of any person; (15) divorce; (16) legitimation or adoption of persons; (17) relief of minors from legal disabilities; (18) transfer of any property interest of persons under legal disabilities or of estates of decedents; (19) hunting or fresh water fishing; (20) regulation of occupations which are regulated by state agency; or

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(3) (4)

(5)

(6) (7) (8)

(9)

(21) any subject when prohibited by general law passed by a three-fifths vote of the membership of each house. Such law may be amended or repealed by like vote. General Law—A law that uniformly applies to the whole state. It applies to all things or persons in the state that are covered by the statute. Special Law—A law that applies to a particular person, thing, class, or location within the state, giving special treatment. A Local Law is a type of special law that singles out a particular geographic location (city or county) for special treatment. General Law of Local Application—Population-based acts; laws that apply throughout the state but are limited to certain geographic areas because of their populations. - EX—All counties with more than 200,000 residents must provide bus service to its residents in unincorporated areas. - EX—Cities with populations of 50,000 must form a city-mayor form of government, 100,000 must have a city manager form of government. Special laws and local laws must satisfy the notice requirement OR be passed by a referendum vote of the affected area per Article III, § 10. Certain subjects cannot be governed by a special or local law per Article III, § 11. St. Johns River Water Management District v. Deseret Ranches of Florida, Inc. (Fla. 1982) - The legislature passed a law making the Greater St. Johns River Basin, a water management district. The districts are administrative agencies. - The legislature passed the law without notice or a referendum vote. - The DCA held that the law was an unconstitutional local law. - The FSC reversed, holding that it was a properly enacted general law. (A) The history of the enactment indicated that the statute was part of a general statewide water management plan. (B) A law does not have to be universal in application to be a general law if it materially affects the people of the state (compared with turnpikes and railroads). State Department of Legal Affairs v. Sanford-Orlando Kennel Club (Fla. 1983) - A 1980 statutory amendment allowed a harness racing track to convert into a greyhound racing track. - At the time of enactment, only 2 greyhound tracks existed in the area, and both were within 40 miles of the track that converted (Seminole Greyhound Park). - The 2 existing tracks sued to block the 1980 amendment’s application, wanting to prevent the additional competition. They argued that the statute only applied Seminole, constituting a special law and requiring notice or a referendum vote. - The FSC ruled that there was no question that the act applied only to one organization, but upheld the 1980 amendment. (A) The act can be used later by other areas and tracks throughout the state. (B) The statute comes with the presumption of constitutionality. (C) The statute was clear on its face, preventing an examination of the legislative history.

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(10)

(11)

(12)

(13)

(D) A rational relationship existed between the law and its purpose (to gather revenue for the whole state). The purpose was not to benefit the individuals, but the whole state. Pinellas County Veterinary Medical Society, Inc. v. Chapman (Fla. 1969) - A properly enacted special law was attacked on EP grounds—the statute makes dog owners in Pinellas get shots for their dogs that residents of other counties doe not have to get. - The FSC didn’t use proper EP analysis (RBT). - Instead, the FSC used special law requirements, which had been met, and upheld the statute. State v. Bessenger (Fla. 1961) - A statute prohibited nudist colonies in cities with populations from 35,000-38,000, which only applied to Pasco county. - The defendant (convicted under the statute) filed for a writ of habeas corpus. - The FSC ruled that the law was an invalid general law of local application. - TEST—does the relationship of the object of the act have a rational relationship to the population range? - A population of 36,700 (Pasco) is no different than a greater or lesser population for purposes of having a nudist colony. - This particular size of a population cannot be singled out. - The defendant was released. City of Cape Coral v. GAC Utilities (Fla. 1973) - Article III, § 11(20)—prohibits special laws or general laws of local application from pertaining to the regulation of occupations that are regulated by a state agency. - A statute allowed the city to set its own rates for water and sewer services, a function originally performed by GAC, which was regulated by the Florida Public Services Commission. - The FSC ruled that at the time of the legislature’s enactment (the very instant of enactment), GAC was no longer regulated by FPSC, making Article III, § 11(20) no longer applicable. - BAD DECISION—The legislature can only divest an AA by enacting a general law, not a special one. This case shows how far the FSC will go to defer to the legislature. State v. Roberts (Fl. 2d DCA 1982) - Criminal Case—the defendant put up an animated sign, violating a Whitfield Zoning Board ordinance. - The defendant moved to dismiss the information by attacking the statute as an improperly enacted special law that vested the Board with power. - The defendant argued that the special law violated Article III, § 11(a)(1), which prohibited special laws from pertaining to county commissioners (the law gave power to the Board that the county normally held). - The FSC disagreed, holding that the special law did not affect the power of Lee County. (A) Lee County never had zoning power to start with.

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f.

(B) The literal language of the law may result in unconstitutionality, but the purpose of Article III, § 11(a)(1) is to prevent the use of a special law to preempt a valid general law. (C) In this case, the legislature passed general laws after the special law which were consistent with the special law. The conflict that Article III, § 11(a)(1) seeks to avoid therefore doesn’t exist, negating the need to apply Article III, § 11(a)(1). (14) Town of Palm Beach v. Palm Beach Local, 1866, IAFF (Fla. 1973) - The union wanted to be the sole bargaining agent for the local firefighters. - The town council filed for a declaratory judgment, arguing that a special law allowing firefighters to pick their own union agents was an unconstitutionally passed special law. The town argued that the notice requirement had not been met. - ISSUE—How detailed does the notice have to be? - The FSC dodges the issue, holding that a subsequent general law covered the same subject, rendering the special law issue moot. The special law always gives way to the general law. The Governor’s Veto Power—Article III, Section 8 (1) Art. III, § 8— (a) Every bill passed by the legislature shall be presented to the Governor for his approval and shall become a law if he approves and signs it, or fails to veto it within seven consecutive days after presentation. If during that period or on the seventh day the legislature adjourns sine die or takes a recess of more than thirty days, he shall have fifteen consecutive days from the date of presentation to act on the bill. In all cases except general appropriation bills, the veto shall extend to the entire bill. The Governor may veto any specific appropriation in a general appropriation bill, but may not veto any qualification or restriction without also vetoing the appropriation to which it relates. (b) When a bill or any specific appropriation of a general appropriation bill has been vetoed by the Governor, he shall transmit his signed objections thereto to the house in which the bill originated if in session. If that house is not in session, he shall file them with the secretary of state, who shall lay them before that house at its next regular or special session, and they shall be entered on its journal. (c) If each house shall, by a two-thirds vote, reenact the bill or reinstate the vetoed specific appropriation of a general appropriation bill, the vote of each member voting shall be entered on the respective journals, and the bill shall become law or the specific appropriation reinstated, the veto notwithstanding. (2) The Florida Constitution does not have a “pocket veto” (under the Federal Constitution, the President can disapprove legislation simply by deciding not to sign the legislation presented to him, when Congress adjourns before the expiration of the period allowed to the President to either sign or veto the bill). (3) In Florida, a bill generally becomes law if the Governor doesn’t veto or sign it within seven days of being presented to the Governor. (4) The seven-day period is expanded to fifteen if the legislature adjourns sine die during the seven-day period. (5) Sine Die —Without assigning a day on which to appear or assemble again during that session (final adjournment).

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(6) Florida Society of Opthamology v. Florida Optometric Association (Fla. 1986) - The Governor vetoed a bill on the 15th day of review. - The legislature adjourned sine die on June 13. On June 14, they presented the bill to the Governor. - The Society sued for a writ of mandamus against the SOS, arguing that the Governor only had 7 days to veto. Article III, § 8 only allows 15 days if the legislature adjourns AFTER presenting to the governor, which didn’t happen in this case. - The FSC strains logic again by looking to the purpose/intent behind Art. III, § 8. (A) The provision exists to give the Governor the time necessary to review legislation. At the end of the session, the legislature dumps hundreds of bills on the Governor at once. The purpose of the provision is to give the Governor time to research and make an adequate decision with all of these bills. (B) Constitutional provisions must be broadly and liberally construed. (C) Constitutional provisions should not be construed so as to defeat their purposes. (D) The Governor received this bill at the end of the session, and the provision should be construed to give the Governor the time needed to evaluate and research each bill so that he can make a good decision. IV. THE COURTS A. Intro—Article V, Section 1 1. Courts—The judicia l power shall be vested in a supreme court, district courts of appeal, circuit courts and county courts. No other courts may be established by the state, any political subdivisions or any municipality. The legislature shall, by general law, divide the state into appellate court districts and judicial circuits following county lines. Commissions established by law, or administrative officers or bodies may be granted quasi-judicial power in matters connected with the functions of their offices. The legislature may establish by general law a civil traffic hearing officer system for the purpose of hearing civil traffic infractions. 2. There are now two trial courts (county and circuit). County courts are of limited original JD. Circuit courts are courts of general original JD (civil and criminal). 3. The FSC is a court of limited JD, most of which is appellate. The DCA’s provide the majority of appellate review. 4. Administrative Agencies are allowed quasi-judicial powers, but the state legally only has 4 types of true courts. B. Constitutional JD of Florida Courts 1. The FSC a. Article III, Section 16 (b) FAILURE OF LEGISLATURE TO APPORTION; JUDICIAL REAPPORTIONMENT. In the event a special apportionment session of the legislature finally adjourns without adopting a joint resolution of apportionment, the attorney general shall, within five days, petition the supreme court of the state to make such apportionment. No later than the sixtieth day after the filing of such

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b.

c.

d.

e.

petition, the supreme court shall file with the secretary of state an order making such apportionment. (c) JUDICIAL REVIEW OF APPORTIONMENT. Within fifteen days after the passage of the joint resolution of apportionment, the attorney general shall petition the supreme court of the state for a declaratory judgment determining the validity of the apportionment. The supreme court, in accordance with its rules, shall permit adversary interests to present their views and, within thirty days from the filing of the petition, shall enter its judgment. (f) JUDICIAL REAPPORTIONMENT. Should an extraordinary apportionment session fail to adopt a resolution of apportionment or should the supreme court determine that the apportionment made is invalid, the court shall, not later than sixty days after receiving the petition of the attorney general, file with the secretary of state an order making such apportionment. Article IV, Section 1(c)—The governor may request in writing the opinion of the justices of the supreme court as to the interpretation of any portion of this constitution upon any question affecting his executive powers and duties. The justices shall, subject to their rules of procedure, permit interested persons to be heard on the questions presented and shall render their written opinion not earlier than ten days from the filing and docketing of the request, unless in the judgment the delay would cause public injury. Article IV, Section 3(b)—Upon impeachment of the governor and until completion of trial thereof, or during his physical or mental incapacity, the lieutenant governor shall act as governor. Further succession as acting governor shall be prescribed by law. Incapacity to serve as governor may be determined by the supreme court upon due notice after docketing of a written suggestion thereof by four cabinet members, and in such case restoration of capacity shall be similarly determined after docketing of written suggestion thereof by the governor, the legislature or four cabinet members. Incapacity to serve as governor may also be established by certificate filed wit h the secretary of state by the governor declaring his incapacity for physical reasons to serve as governor, and in such case restoration of capacity shall be similarly established. Article IV, Section 10—The attorney general shall, as directed by general law, request the opinion of the justices of the supreme court as to the validity of any initiative petition circulated pursuant to Section 3 of Article XI. The justices shall, subject to their rules of procedure, permit interested persons to be heard on the questions presented and shall render their written opinion expeditiously. Article V, Section 2 (a) The supreme court shall adopt rules for the practice and procedure in all courts including the time for seeking appellate review, the administrative supervision of all courts, the transfer of the court having jurisdiction of any proceeding when the jurisdiction of another court has been improvidently invoked, and a requirement that no cause shall be dismissed because an improper remedy has been sought. These rules may be repealed by general law enacted by two-thirds vote of the membership of each house of the legislature. (b) The chief justice of the supreme court shall be chosen by a majority of the members of the court. He shall be the chief administrative offic er of the judicial system. He shall have the power to assign justices or judges, including consenting retired justices or judges, to temporary duty in any court for which the judge is qualified and to delegate to a chief judge of a judicial circuit the power to assign judges for duty in his respective circuit. (c) A chief judge for each district court of appeal shall be chosen by a majority of the judges thereof or, if there is no majority, by the chief justice. The chief judge shall be responsible for the administrative supervision of the court.

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(d) A chief judge in each circuit shall be chosen from among the circuit judges as provided by supreme court rule. The chief judge shall be responsible for the administrative supervision of the circuit courts and county courts in his circuit. f. Article V, Section 3 (b) Jurisdiction.--The supreme court: (1) Shall hear appeals from final judgments of trial courts imposing the death penalty and from decisions of district courts of appeal declaring invalid a state statute or a provision of the state constitution. (2) When provided by general law, shall hear appeals from final judgments entered in proceedings for the validation of bonds or certificates of indebtedness and shall review action of statewide agencies relating to rates or service of utilities providing electric, gas, or telephone service. (3) May review any decision of a district court of appeal that expressly declares valid a state statute, or that expressly construes a provision of the state or federal constitution, or that expressly affects a class of constitutional or state officers, or that expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law. (4) May review any decision of a district court of appeal that passes upon a question certified by it to be of great public importance, or that is certified by it to be in direct conflict with a decision of another district court of appeal. (5) May review any order or judgment of a trial court certified by the district court of appeal in which an appeal is pending to be of great public importance, or to have a great effect on the proper administration of justice throughout the state, and certified to require immediate resolution by the supreme court. (6) May review a question of law certified by the Supreme Court of the United States or a United States Court of Appeals which is determinative of the cause and for which there is no controlling precedent of the supreme court of Florida. (7) May issue writs of prohibition to courts and all writs necessary to the complete exercise of its jurisdiction. (8) May issue writs of mandamus and quo warranto to state officers and state agencies. (9) May, or any justice may, issue writs of habeas corpus returnable before the supreme court or any justice, a district court of appeal or any judge thereof, or any circuit judge. (10) Shall, when requested by the attorney general pursuant to the provisions of Section 10 of Article IV, render an advisory opinion of the justices, addressing issues as provided by general law. g. Article V, § 3(b)(1)—“Shall hear appeals from final judgments of trial courts imposing the death penalty and from decisions of district courts of appeal declaring invalid a state statute or a provision of the state constitution.” (1) This provision provides two instances in which appeal to the FSC may be made as a matter of right. (2) The first right to appeal directly to the FSC exists from final judgments of trial courts imposing the death penalty. (3) The second right to appeal directly to the FSC exists from decisions of DCA’s declaring a state statute or part of state constitution invalid. (4) Once the FSC obtains JD over one issue by Art. V, § 3(b)(1), it may rule on the other appellate issues in the case. See Rojas v. State, 288 So. 2d 234 (Fla. 1973). h. Article V, § 3(b)(2)—“When provided by general law, shall hear appeals from final judgments entered in proceedings for the validation of bonds or certificates of

34

i.

indebtedness and shall review action of statewide agencies relating to rates of service or utilities providing electric, gas, or telephone service.” (1) This provision permits the legislature to make the FSC invoke jurisdiction in two instances. (2) The first right to appeal directly to the FSC (as mandated by the legislature) is from “final judgments entered in proceedings for the validation of bonds or certificates of indebtedness.” See Sec. 75.08, Fla. Stat. (1989). (3) The second right to appeal directly to the FSC (as mandated by the legislature) is from action of statewide agencies relating to rates or service of utilities providing electric, gas, or telephone service. See City of Tallahassee v. Florida Public Service Commission, 433 So. 2d 505 (Fla. 1983). Discretionary Review (1) Scope of discretionary review (ability of FSC to grant certiorari) - The FSC can review any error in the record (beyond those which give the FSC JD) once the FSC properly invokes JD. See Lawrence v. Florida East Coast Railway, 346 So. 2d 1012 at footnote 2 (Fla. 1977); see also Fla. R. App. P. 9.040 (“In all proceedings a court shall have such JD as may be necessary for a complete determination of the cause.”); but see Sunspan Engineering v. Spring Lock, 310 So. 2d 4 (Fla. 1975) (when the FSC grants certiorari to review part of an interlocutory order of a trial court that passed on the validity of a statute, there was “no basis for certiorari JD” upon which to review other parts of the interlocutory order). - Lawrence has been followed as a general rule of the FSC. See Leisure Resorts, Inc. v. Frank J. Rooney, Inc. (Fla. 1995) (2) Article V, § 3(b)(3)—“May review any decision of a district court of appeal that expressly declares valid a state statute, or that expressly construes a provision of the state or federal constitution . . . .” VALIDITY/CONSTRUCTION JD— DISCRETIONARY - McNamara v. State (Fla. 1978) (“Although it is unnecessary to the disposition of this cause to resolve the constitutional question and, therefore, we will not do so, this does not divest us of JD to dispose of the other issues involved . . . .” (3) Article V, § 3(b)(3)—“May review a decision of a district court of appeal that . . . expressly affects a class of constitutional or state officers . . . .” CLASS JD— DISCRETIONARY - Florida State Board of Health v. Lewis (Fla. 1963) (A) Petitioner argued that its being a five-member board constituted a “class” within the JD of Art. V. § 3(b)(3). (B) The purpose of the “class” provision is to give the FSC JD to review decisions which would affect all constitutional or state officers exercising the same powers, even though only one may be affected in a particular case. (C) “Class” under Art. V § 3(b)(3)—2 or more constitutional state officers who separately and independently exercise identical powers of government. (D) This provision’s JD can ONLY be invoked when two or more members of a given class of separate official entities exists. (E) The Board is insufficient to constitute a “class” because they are all part of the same official entity (the Board of Health). - Sarasota Classified/Teachers Association v. Sarasota Cty SD (Fla. 1994)

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(A) FSC indicated that JD actually didn’t exist under Art. V § 3(b)(3)’s class provision. (B) Dissent—JD exists since the many school boards of this state constitute a class according to the Lewis definition. The FSC simply exercised its discretion in not granting JD. - Spradley v. State (Fla. 1974) (A) Prosecuting attorney failed to comply with discovery requirements. The trial court refused to provide relief requested by the Petitioner. (B) The Petitioner argued that the FSC had JD over the trial judge as a “class,” under an earlier FSC case (Richardson v. State). (C) Alternatively, the Petitioner argued that prosecuting attorneys are a “class,” under another FSC case (State v. Robinson) (D) The FSC rejected both arguments, indicating that if it agreed with the Petitioner, the FSC could invoke this form of JD in any case because a trial judge is always involved. (E) Both cited cases are far too broad when the DCA’s are to be the usual courts of final appeal. The FSC’s JD is limited to the enumerated sources of JD in the constitution. (F) “A decision which ‘affects a class of constitutional or state officers’ must be one which does more than simply modify or construe or add to the case law which comprises much of the substantive and procedural law of this state.” (G) A decision must DIRECTLY and EXCLUSIVELY affect the duties, powers, validity, formation, termination or regulation of a particular class of constitutional or state officers. (H) In this case, no member of a class of constitutional or state officers was a party. In addition, the state attorney’s non-compliance with the discovery rules didn’t affect a class. (4) Art. V, § 3(b)(3)—“May review any decision of a DCA . . . that expressly and directly conflicts with a decision of another DCA or of the FSC on the same question of law." CONFLICT JURISDICITION—DISCRETIONARY - City of Jacksonville v. Florida First Nat. Bank of Jacksonville (Fla. 1976) (A) Categories where Conflict JD is appropriate (2 types of Conflict JD) (i) Announced rule of law conflicts with other appellate expressions of law. (ii) Where a rule of law is applied to produce a different result in a case which involves “substantially the same controlling facts as a prior case.” - Niemann v. Niemann (Fla. 1975) (A) A conflict of DECISIONS (holdings) must exist before the FSC can properly invoke Conflict JD. A conflict in the language (opinion/dicta) does not constitute a conflict for Conflict JD purposes. (B) 2 DCA’s (i) 4th DCA—Tenancy of the Entireties can be divided upon agreement of both parties. (ii) 3rd DCA—Tenancy of the Entireties can be divided upon the request of one party. (C) The decision of one of the DCA’s didn’t involve the Tenancy of the Entireties issue.

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-

-

-

-

-

Skinner v. State (Fla. 1985)—If a DCA recedes from its earlier decision, that decision can be used by the FSC if the FSC certified JD at the time that the decision was good law. Bailey v. Hough (Fla. 1983) (A) Petition to the FSC was accepted. The FSC discovered after accepting JD that the conflict had been resolved before the FSC officially invoked its JD. (B) When conflict didn’t exist at the time the FSC invoked Conflict JD, the FSC should dismiss for lack of JD. Jenkins v. State (Fla. 1980) (A) Per Curiam Affirmed (PCA) opinions—no opinion is written. (B) ISSUE—Do PCA’s create a conflict if it simply affirms the trial court? (C) The FSC cannot invoke Conflict JD based on a PCA. A true conflict cannot exist. (i) An opinion must EXRESSLY conflict with another DCA’s opinion. (ii) PCA’s create no precedent; they therefore do not create any substantive law to create a conflict in the first place. (D) Dissents to a PCA do not constitute law either, and do not make PCA’s substantive law for purposes of conflict. Dodi Publishing Co. v. Editorial America, SA (Fla. 1980) (A) The PCA from the 3d DCA cited a case for support (“Citation PCA”). (B) The cited case was another 3d DCA case. (C) The Petitioner argued that conflict existed between the cited 3d DCA case and a 1st DCA case, but the case under review was the PCA. (D) The FSC held that the case under review must conflict rather than a case cited by the case under review. (E) The FSC therefore denied Conflict JD. The FSC will not do research to find a conflict. (F) A citation PCA cannot be reviewed by the FSC as a source of conflict. Stevens v. Jefferson (Fla. 1983) (A) A PCA cited 2 cases on each side of an issue and expressed its opinion that the cases conflict. (B) The FSC accepted Conflict JD. (C) Boyd, Dissenting—The PCA didn’t constitute a discussion, analysis, or statement of the law, therefore failing to constitute a decision that expressly conflicts. The PCA only noticed a conflict between other cases, but failed to clarify or conflict itself. Ford Motor Co. v. Kikis (Fla. 1981) (A) The trial court vacated a jury verdict for Kikis and granted Ford’s motion for a directed verdict, alternatively granting Ford’s motion for a new trial on the grounds that the verdict was contrary to the weight of the evidence and that the court had erred in refusing to give an instruction requested by Ford. (B) The DCA reversed, directing the jury verdict to be reinstated for Kikis. (C) In its opinion, the DCA did not identify a direct conflict with any other DCA’s. (D) The DCA’s opinion’s discussion of the basis upon which it reversed the trial court’s entry of a directed verdict was a sufficient basis for a

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petition for Conflict JD under Art. V § 3(b)(3), satisfying the “expressly” requirement. (E) It is not necessary for a DCA explicitly to identify conflicting DCA or FSC opinions in its opinions to create and “express” conflict under Art. V § 3(b)(3). Jollie v. State (Fla. 1981) JOLLIE FSC Murray, Knight, Allen, Jollie, and Tuscano 5TH DCA Murray (controlling case) CONFLICT Knight, Allen, and Jollie citation PCA’s (companion cases)

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1ST DCA Toscano

(A) The 1st DCA decided that the FSC’s jury instructions were permissive (the trial judge can use her discretion) in Tuscano. (B) The 5th DCA decided that the instructions were mandatory in Murray, but also held that the trial court’s failure to give the instructions constituted harmless error. The holding/result was therefore the same as the holding/result in Tuscano, even though the DCA’s disagreed on the point of law. (C) According to Niemann, a conflict did not exist because the two holdings were the same. (D) Knight, Allen and Jollie were cases pending to the FSC from the 5th DCA (the DCA that decided Murray). All three were PCA’s. (E) The FSC certified conflict based on the conflict between Murray and Tuscano for the Knight, Allen, and Jollie cases: (i) Murray was correct on the law, but the FSC reversed on the issue of harmless error. (ii) EXCEPTION #1 (PCA’s)—The FSC made an exception for Knight and Allen, which were decided in the DCA’s before the 1980 amendment to the Fla. Constitution that barred PCA’s. If a case upon which a PCA is based is reversed or pending (the controlling case, i.e. Murray), the case constitutes prima facie express conflict and allows the FSC to exercise Conflict JD over the PCA decision. (iii) EXCEPTION #2 (timing of Jollie)—Jollie, however, required an exception to Dodi. The FSC ruled that fairness and consistency in decisions allowed the FSC to certify conflict, even though Jollie took place after the 1980 amendments that barred PCA’s. (iv) The FSC held that if it decided otherwise, DCA’s would have to write opinions for every case in order for the litigants to have the ability to appeal. The right to appeal should not be cut off simply because the DCA didn’t write an opinion. Harrison v. Hyster Company (Fla. 1987) (A) The 2nd DCA affirmed the dismissal of a case based upon a 2nd DCA PCA decision.

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(B) The FSC subsequently declined to accept Conflict JD in the controlling case. (C) In order for the Jollie exception to apply, the FSC must grant JD to the PCA’s controlling case JD or the FSC must have reversed the PCA’s controlling case. Hamman v. Worling (Fla. 1989) WORLING FSC Landis Shearer 5TH DCA McCullough (controlling case) Hamman (companion case)

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CONFLICT

2D DCA Zordan

(A) The 5th DCA issued Hamman, a PCA based on McCullough, another 5th DCA opinion that was pending in the FSC. A 2d DCA opinion (Zordan) conflicted with McCollough. (B) The FSC disapproved Zordan in Landis. The FSC affirmed Hamman in Landis. The FSC affirmed McCullough in Shearer. (C) The FSC expanded the Jollie exception by using several cases unrelated to the controlling case to find Conflict JD. Stupack v. Winter Park Leasing, Inc. (Fla. 1991) STUPACK FSC 5TH DCA 2D DCA ANOTHER DCA Stupak, cit. PCA (agreement) Kraemer (conflict)

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(A) This case completely eroded Dodi and the 1980 amendments. (B) The FSC found conflict JD from a 5th DCA PCA based upon a 2nd DCA opinion (completely different DCA). (C) The FSC cites Jollie as a basis of JD, even though the facts were completely different and no conflict really existed between the 5th and 2d DCA’s. (D) Bad decision—allows the FSC to take non-conflicting cased for review under its Conflict JD. (E) Also allows the FSC to take Conflict JD from another DCA as a companion case as a basis of conflict. City of Miami v. Arostegui (Fl. 1st DCA 1993) (A) DCA’s JD was challenged because the FSC was reviewing a petition to invoke discretionary JD in the case. (B) While the petition was pending, the DCA ruled on the case, issuing a mandate for the City to pay damages.

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(C) The City moved to recall the mandate, arguing that Jollie required the DCA to recall its mandate because their case was pending in the FSC. (D) The DCA disagreed—“Jollie does not stand for the proposition that we should recall our mandate just because review is pending in the FSC.” - Jenkins v. State (Fl. 3d DCA 1994) (A) PCA used a parenthetical explanation after the cite. (B) Jacob thinks that the use of a parenthetical doesn’t provide enough legal analysis to certify conflict. - Order Aviation Services v. DAR (Fl. 1st DCA 1994) (A) PCR (reversal)—same rules should apply as Dodi. (5) Art. V, § 3(b)(4)—“May review any decision of a DCA that passes on a question certified by it to be of great public importance . . . . “ QUESTION OF GREAT PUBLIC IMPORTANCE JD - The 1980 amendments substituted “importance” for the word “interest,” used in the preceding provision. - Committee Notes for the 1980 Amendments—“The change was to recognize the fact that some legal issues may have ‘great public importance,’ but may not be sufficiently known by the public to have ‘great public interest.’” - Rupp v. Jackson (Fla. 1970) (A) The DCA certified to the FSC—“ORDERED that the opinion of this court filed November 7, 1969 is hereby certified to be one which passes upon a question of great public importance.” (B) The FSC ruled that this was insufficient. (i) The DCA certification must be based on a question, not an opinion or statement. (ii) The DCA certification must be in question form. (C) The FSC looked at the issue and ruled anyway, however. - Petrik v. New Hampshire Insurance Company (Fla. 1981) (A) The DCA certified as a question of great public importance, but the losing party in the DCA never appealed from the DCA. (B) New Hampshire sought to compel another insurance company to contribute to payment of the damage sustained by the claimants. (C) The DCA ruled against the 2nd insurance company, making them contribute, even though it had a clause exempting it from liability. (D) They may not have wanted to appeal to prevent the FSC from handing down an unfavorable statewide rule. (E) The FSC refused to hear the case because the losing party at the DCA level must file a petition for certiorari in addition to DCA certification. Certification alone is insufficient to support JD based on a question of great public importance. (6) Art. V, § 3(b)(4)—“May review any decision of a DCA, . . . that is certified by it to be in direct conflict with a decision of another DCA.” DCA CONFLICT JD. - Differs from Conflict JD under Art. V, § 3(b)(3). (A) Art. V, § 3(b)(3) deals with conflict between a DCA and the FSC. (B) Art. V, § 3(b)(4) requires certification by the DCA, can be appealed by the litigants, and deals with conflict among the DCA’s. - No “express” requirement, so PCA’s can be certified technically. It is inconceivable that the drafters of the 1980 amendments, having

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abolished Conflict JD in § 3(b)(3) when the DCA does not write an opinion, would have intended to let a DCA decide a case without an opinion and then certify that decision as creating conflict. - Davis v. Mandau (Fla. 1981) (A) The DCA affirmed the trial court’s grant of summary judgment. The DCA certified the portion of its decision relating to costs as conflicting with other DCA’s (B) Evans, against whom the costs issue (summary judgment) was made didn’t appeal (probably because he didn’t want to chance the FSC’s review of summary judgment, which was decided in Evans’ favor). (C) The FSC applied Petrik to deny JD: (i) Where the conflict certified by the DCA hasn’t been appealed by the litigants, the FSC doesn’t have JD. (ii) Two elements are necessary for DCA Conflict JD (DCA certification AND a petition for review by the losing party). (7) Art. V, § 3(b)(5)—“May review any order or judgment of a trial court certified by the DCA in which an appeal is pending to be of great public importance, or to have a great effect on the proper administration of justice throughout the state, and certified to require immediate resolution by the FSC.” “BYPASS” OR “OH SHIT!” JD. - Permits an issue to bypass the DCA level and go directly to the FSC for review. - The FSC may review non-final or final orders (permits interlocutory review). - The DCA must certify the case as an issue of great public importance. - Department of Insurance v. Teachers Insurance Company (Fla. 1981) (A) The majority granted Bypass JD. (B) England Dissent: (i) ISSUE—Can the Insurance Commission retroactively apply a statute so as to require insurance companies to pay three years worth of rebates to its policy holders? (ii) The FSC should only review matters of immediate importance. (iii) The DCA’s should not be able to resolve the issue if the FSC accepts Bypass JD. (iv) The FSC must put other cases on the backburner to hear such cases, so JD should not be invoked lightly (not exactly true because Bypass JD cases do not have to be heard in any particular time). (v) There should be a sense of immediacy before the FSC invokes Bypass JD, and none existed in this case. (vi) Three standards should apply to the FSC’s ability to invoke Bypass JD: (1) neither counsel or DCA judges should control the decision-making process (mere DCA indication of immediacy doesn’t preclude the FSC’s independent assessment); (2) cases accepted should be necessary to preserve the integrity of a governmental system’s operation; AND (3) validity or invalidity of a statute, or a construction of the federal or state constitution is generally not immediate enough. (vii) JD under this provision should be invoked only for trial court decisions that disrupt the whole state system.

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(viii)

j.

EX—trial court’s ruling that the death penalty is unconstitutional. (8) Art. V, § 3(b)(6)—“May review a question of law certified by the Supreme Court of the United States or a United States Court of Appeals which is determinative of the cause and for which there is no controlling precedent of the FSC.” FEDERAL COURT JD. - Federal COA and US Supreme Court cases that have an unresolved issue of Florida law may be certified to the FSC. Writs —FSC has limited original JD to issue writs of prohibition, mandamus, quo warranto, habeas corpus, and writs necessary to the complete exercise of its JD. (1) Art. V, § 3(b)(7)—“May issue writs of prohibition to courts . . . .” PROHIBITION JD. - Moffitt v. Willis (Fla. 1984) (A) The Florida Legislature closed its commission meetings to the public against its own house rules. (B) The FSC may issue writs to any state court (DCA’s, circuit and county courts). (C) DCA’s may also issue writs of prohibition per Article V, § 4(b)(3). (D) Members of the media sued the Speaker of the House and the President of the Senate. (E) The Speaker and President filed motions to dismiss, arguing that it was a violation of SOP for the FSC to require the legislature to adhere to the legislature’s rules. The FSC was without power to enforce the legislature’s rules. (F) The writ was denied even though the lower (circuit) court exceeded its JD. The FSC ruled that the circuit court’s order was quashed. (G) TEST GUIDING THE FSC’S GRANT OF A WRIT OF PROHIBITION—On the face of the matter, does it appear likely that the court is about to act in excess of its JD. - English v. McCrary (Fla. 1977) (A) English (a reporter) wanted access to divorce proceedings. The judge wouldn’t let him attend, closing the proceedings to the press. (B) English filed for a writ of prohibition in the DCA, which was denied. (C) The FSC upheld the DCA: (i) A writ of prohibition does not lie because a writ of prohibition is preventative rather than curative. (ii) The judge had already ruled, making a writ of prohibition the wrong remedy. Certiorari or appellate review is appropriate. (iii) Prohibition is not used to establish precedent, but to forestall or preempt injury. (iv) Prohibition does not apply to an erroneous decision made under correct JD. The judge in this case had JD to make the decision that he did, even if the judge abused his authority. (2) Art. V, § (3)(b)(7)—“May issue . . . all writs necessary to the complete exercise of its JD.” ALL WRITS JD. - The FSC can issue writs to protect existing JD. - The FSC has also expanded this clause to be an independent source of JD. - Besoner v. Crawford (Fla. 1978)

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(A) All Writs JD can only be invoked if it is clear that the writ is in fact necessary in aid of an ultimate power of review. Florida Appellate Rule 4.5(g). - St. Paul Title Insurance Corporation v. Davis (Fla. 1980) (A) The All Writs provision cannot be used as an independent basis for JD. (B) FSC may issue any writ necessary to protect its existing JD. - Couse v. Canal Authority (Fla. 1968)—FSC used Art. V, § 3(b)(3) to invoke independent JD. No other JD was invoked. Possibly eroded by Besoner and St. Paul Title. - Fla. Senate v. Graham (Fla. 1982)—FSC cited Couse, detracting from the erosion argument. 412 So. 2d 360, 361; see also 630 So. 2d 1093, 1095 (Fla. 1994) (citing Fla. Senate). (3) Art. V, § 3(b)(8)—“May issue writs of mandamus and quo warranto to state officers and state agencies.” MANDAMUS AND QUO WARRANTO JD - Writ of Mandamus—compels a public officer to perform a ministerial duty; cannot be used to make a public officer exercise legitimate discretion a particular way. See Graham v. Vann, 394 So. 2d 180 (Fla. 1st DCA 1982). - Writ of Quo Warrento—tests the right of a person to hold office or exercise some right or privilege derived from the state. This writ is rarely used. See Ex Parte Smith, 118 So. 306 (Fla. 1928). (4) Art. V, § 3(b)(9)—“May, or any justice may, issue writs of habeas corpus returnable before the supreme court or any justice, a DCA or any judge thereof, or any circuit judge.” - Concurrent JD exists in circuit courts, DCA’s and the FSC to issue writs of habeas corpus. - Florida Parole and Probation Commission v. Baker (Fl. 2d DCA 1977) (A) The Petitioner filed a 2nd petition for a writ of habeas corpus to the circuit court. The first had been filed to the FSC and denied. The circuit court granted the 2nd petition. (B) The DCA reversed, ruling that res judicata prevented it from being granted after a 2nd petition where the first was legitimately denied. 2. The DCA’s a. Article V, Section 4(b)—Jurisdiction (1) District courts of appeal shall have jurisdiction to hear appeals, that may be taken as a matter of right, from final judgments or orders of trial courts, including those entered on review of administrative action, not directly appealable to the supreme court or a circuit court. They may review interlocutory orders in such cases to the extent provided by rules adopted by the supreme court. (2) District courts of appeal shall have the power of direct review of administrative action, as prescribed by general law. (3) A district court of appeal or any judge thereof may issue writs of habeas corpus returnable before the court or any judge thereof or before any circuit judge within the territorial jurisdiction of the court. A district court of appeal may issue writs of mandamus, certiorari, prohibition, quo warranto, and other writs necessary to the complete exercise of its jurisdiction. To the extent necessary to dispose of all issues in a cause properly before it, a district court of appeal may exercise any of the appellate jurisdiction of the circuit courts. b. Art. V, § 4(b)(1)—“DCA’s shall have JD to hear appeals, that may be taken as a matter of right, from final judgment or orders of trial courts including those entered on review of

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administrative action not directly appealable to the FSC or a circuit court.” DCA MATTER OF RIGHT JD (1) DCA’s have JD over any final judgment of the circuit courts. (2) The italicized portion implies that DCA’s may hear as a matter of right administrative cases already reviewed in the circuit courts as a matter of right. (3) State v. Furen, 103 So. 2d 639 (Fla. 1958)—review of local agency action in the circuit court is a “trial”, appealable from the circuit court as a matter of right. THIS CASE WAS OVERRULED IN VAILLANT. (4) City of Deerfield Beach v. Vaillant (Fla. 1982) - The FSC ignores the obvious intent behind Art. V, § 4(b)(1) and effectively overruled Furen. - Vaillant (a Deerfield Beach employee) was fired. A local agency reversed his dismissal. The City appealed to the 4th DCA, which denied certiorari. - The FSC did not cite or refer to Furen. - Certiorari is a voluntary source of JD where the City claimed the DCA’s JD as a matter of right. - Where full review of administrative action is made in the circuit court as a matter of right, one appealing the circuit court’s judgment is not entitled to a second full review by the DCA as a matter of right. - The circuit court must review three aspects of the AA’s decision to avoid possible error: (A) Did the AA satisfy procedural DP? (B) Did the AA base its findings of fact on substantial and competent evidence? (C) Did the AA observe the essential requirements of law? - Appeal to the DCA was by certiorari and therefore discretionary. - The circuit court acted as an appellate court, so Art. V, § 4(b)(1), which makes a right of appeal to the DCA from a circuit court acting as a TRIAL COURT inapplicable. (5) Seminole Board of County Commissioners v. Long (Fl. 5th DCA 1982) - The DCA points out the defects in Vaillant: (A) The circuit court reviews AA’s as a trial court rather than an appellate court. (B) The DCA’s review should exist as a matter of right. (C) Circuit courts also review county court decisions, acting as courts of appeal. A review of an AA decision is not the same though, because the circuit court isn’t reviewing a judicial decision (a decision made by a part of the state’s judicial branch). - The DCA nonetheless follows Vaillant, but takes the case on certiorari, reversing the circuit court’s ruling. (6) Educational Development Center, Inc. v. City of West Palm Beach Zoning Board (Fla. 1989) - EDC applied to the Board for approval to change into a private school/kindergarten. - The Board denied the request, and EDC appealed to the circuit court. The circuit court reversed, and the Board appealed to the DCA. - The DCA reversed the circuit court: (A) The circuit court erred in its application of the Competent and Substantial Evidence Rule.

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(B) The circuit court should have asked whether there was competent and substantial evidence to support the AA’s findings of fact. (C) The circuit court cannot find competent and substantial evidence favoring the other side as a justification for reversing the AA. - On remand, the circuit court found against EDC again on the same wrong grounds - EDC appealed to the FSC from the circuit court and the FSC affirmed the circuit court (BAD DECISION), holding that the DCA cannot determine whether there is competent and substantial evidence. - McDonald Dissent—The DCA CAN determine whether the circuit court correctly found that essential requirements of law have been met, including the proper use of the Competent and Substantial Evidence Rule. (7) Cherokee Crushed Stone v. City of Miramar (Fl. 4th DCA 1982) - Cherokee applied for a permit to mine lime and the local board denied the application. - Cherokee sought review in the circuit court (through a process also called certiorari) and lost. Cherokee then appealed as a matter of right to the DCA. - ISSUE—Whether reversal by the circuit court is a reversal as an appellate court, limiting the DCA’s JD to a discretionary grant of certiorari? - The DCA followed Vaillant. - The DCA mistakenly characterized matter of right appeal and certiorari appeal as the same thing. - This case makes it impossible to appeal an AA decision reversed by a circuit court to a DCA as a matter of right. c. Art. V, § 4(b)(1)—“The DCA may review interlocutory orders in such cases to the extent provided by rules adopted by the supreme court.” DCA INTERLOCUTORY REVIEW (1) The procedures for review of non-final orders in criminal cases are prescribed in Fla. R. App. P. 9.140. (2) In civil cases, Fla. R. App. P. 9.130 applies, allowing DCA and circuit court review of lower non-final orders which: - concern venue; - grant, continue, modify, deny or dissolve injunctions, or refuse to modify or dissolve injunctions; - determine: (A) JD of the persons; (B) Right to immediate possession of property; (C) Right to immediate monetary relief or child custody in domestic relations matters; (D) The issue of liability in favor of a party seeking affirmative relief; OR (E) Whether a party is entitled to arbitration. d. Art. V, § 4(b)(2)—“DCA’s shall have the power of direct review of administrative action, as proscribed by general law.” DCA DIRECT AA REVIEW (1) Sweetwater Utility Corp. v. Hillsborough County (Fl. 2d DCA 1975) - Sweetwater petitioned for a writ of certiorari, seeking review of portions of an ordinance enacted by Board of County Commissioners of Hillsborough County. - The DCA held that no judicial decision existed that would characterize board of county commissioners as an agency for purposes of judicial

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review under new Administrative Procedure Act or any general or special law making such boards subject to the Act. - The Board of County Commissioners of Hillsborough County was therefore not an “agency” within the provision of Ch. 120.52, which included within the term 'agency' every other unit of government, including counties and municipalities to extent they are expressly made subject to the Act. (2) Yamaha Intl. Corporation v. Ehrman (Fl. 1st DCA 1975) - A statewide agency decision was appealed to the DCA as a matter of right. - ISSUE—Can appeal to the DCA be made as a matter of right or certiorari? - Under Chapter 120.68 (APA), state AA decisions may be reviewed as a matter of right. - The APA was enacted in 1975 and the appellate rules had not yet been changed to accommodate the APA. The DCA ruled that the lack of amended rules could not preclude review. (3) State Commission on Ethics v. Sullivan (Fl. 1st DCA 1983) - Shaw Concurring—administrative remedies must be exhausted before appealing to a court. - If appealing to a court, but if the statute under which an AA is operating is unconstitutional, the AA remedies need not be sought. Key Haven Board of Trustees. FIRST EXCEPTION - At the federal level, AA remedies can be bypassed if the AA remedies would be meaningless (EX—AA always rules one way on an issue). - More exceptions to the Key Haven Rule should exist—the administrative process should be bypassed more easily. - Several constitutional issues also existed in this case, and the Key Haven Rule unfairly restricted access to the courts since the issues didn’t involve facial unconstitutionality. - The Exhaustion of Administrative Remedies Doctrine is not a JD doctrine. Instead the courts defer to AA’s through the Doctrine, even though the courts could invoke JD. - AA’s do not have judicial power and cannot hear constitutional issues. Key Haven unfairly keeps constitutional issues out of the courts. (4) Ford Motor Co. v. Ward (Fl. 4th DCA 1991) - Ward bought a lemon car, but had to go through arbitration before filing suit under the Florida Lemon Law. - ISSUE—Was Ward required to go to arbitration before going to court? - When the seller or AA is stonewalling a consumer, the AA remedy may be skipped. ANOTHER EXCEPTION. - Ford was ignoring Ward’s complaints and never showed up to arbitration. e. Art. V, § 4(b)(3)—“A DCA or any judge thereof may issue writs of habeas corpus returnable before the court or any judge thereof or before any circuit judge within the territorial jurisdiction of the court.” DCA HABEAS CORPUS (1) Futch v. State (Fl. 3d DCA 1982) - Futch was convicted of murder and lost his appeals. - Futch argued three issues that his lawyers failed to raise in his petition for a writ of habeas corpus: (A) Lawyers failed to insist that jurors abstain from reading newspapers during recess.

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f.

(B) Lawyers failed to request the judge to instruct the jury regarding lesser-included offenses. (C) Lawyers failed to request the judge to instruct the jury regarding excusable homicide. - Witnesses in jail cannot be subpoenaed. They must be brought out by a writ of habeas corpus. - Habeas corpus is also used to protest the petitioner’s being held or imprisoned. - Rule 3.850 of the Fla. R. Crim. P. allows a motion to vacate sentences. - Instead of filing/petitioning for a writ of habeas corpus, a Rule 3.850 motion must first be filed in the trial court. Appeal must then be made. - Habeas corpus may still be used where the motion doesn’t apply (EX— the prison warden miscalculates your release date). - This rule gives the trial court a chance to correct a mistake before making habeas corpus necessary. - The Petitioner argued that assistance of counsel on appeal was inadequate for failing to raise the issues, but the DCA ruled that the first issue had no merit and that the other 2 issues were not properly preserved for appellate review by the trial attorneys. - The appeal for the writ of habeas corpus was denied. - The Petitioner was not physically located in the 3d DCA, but the 3d DCA ruled that it was the proper court to rule on the petition because its territory was where the alleged harm took place. The DCA cited Baggett for this authority, but this rule has since been codified. Art. V, § 4(b)(3)—“A DCA may issue writs of mandamus, certiorari, prohibition, quo warrento, and other writs necessary to the complete exercise of its jurisdiction.” DCA WRITS JD (1) Cash v. Smith (Fl. 1st DCA 1985) - Inmates filed a petition to determine the validity of a proposed DOC rule with the Department of Administrative Hearings (DOAH). The rule was disciplinary in nature, applying to prisoner conduct (EX—prisoner hair length). - DOAH dismissed, ruling that the petition did not comply with Fla. Stats. § 120.54(4). - The prisoners then filed an emergency petition to the DCA, arguing that they were not given notice of the order of dismissal until the period necessary to file a timely notice of appeal had expired. - The DCA ruled that the appeal of the DOAH dismissal (the procedural form given to the emergency petition) was not invoked within the requisite 30-day period required for timely appeal under Fla. R. App. P. 9.110(b). - Since the allowable period had run and since the period was procedural rather than substantive, the right to appeal ended at the end of the period, preventing the DCA’s ability to invoke JD, regardless of the fact that the prisoners were not given notice of the dismissal. - The DCA also ruled that habeas corpus doesn’t lie to attack the way you are being treated in prison. Habeas corpus may only be used to attack your very imprisonment. - Mandamus is inapplicable because the petitioners were not seeking to coerce the respondent into performing an official duty. In fact, they were trying to prevent the DOC from performing its official duty by striking the DOC’s rule.

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The DCA nonetheless certified the issue to the FSC as an issue of great public importance, but the FSC never reviewed the case. - Habeas can also be used to require minimum security from maximum security imprisonment when the circumstances make such a change appropriate. g. Art. V, § 4(b)(3)—“A DCA may issue writs of . . . certiorari.” COMMON LAW CERTIORARI (1) Dresner v. City of Tallahassee, 164 So. 2d 208 (Fla. 1964) - Elements of the common law writ of certiorari: (A) Issued in the sound discretion of the DCA; (B) Directed to an inferior court; (C) In order to determine from the face of the record whether the lower court has exceeded its JD or has otherwise deviated from the essential requirements of law; AND (D) No other provision exists for DCA review of the lower court’s judgment. (2) Common law certiorari is a vehicle by which a DCA can review a decision of a circuit court’s non final (interlocutory) orders for which no direct DCA review is provided in the Fla. Rules of Appellate Procedure. (3) Haines City Community Development v. Heggs (Fla. 1995) - This case was a certified question—“After Educational Development Center, Inc. v. City of West Palm Beach (Fla. 1989), does the standard of review in Combs v. State (Fla. 1983) still govern a DCA when it reviews, pursuant to Fla. R. App. Proc. 9.030(b)(2)(B), an order of a circuit court acting in its review capacity over a county court?” - The FSC held that the standards of review in both cases are the same. - FACTS (A) The county court granted Haines City a judgment evicting Heggs for non-payment of rent. (B) The circuit court reversed the county court and Haines City applied for a writ of common law certiorari review to the 2nd DCA. (C) The DCA expressed concern regarding the standard review as shown in the certified question. The DCA was particularly concerned that a different standard existed for review of administrative proceedings and whether Combs was abrogated. - Common law certiorari should not be used to grant a second appeal. - Footnote 3: (A) “First, common-law certiorari is available only ‘where no direct appellate proceedings are provided by law.” (B) “Second, common-law certiorari is entirely discretionary with the court, as opposed to an appeal which is taken as a matter right.” (C) “Third, the scope of review by common-law certiorari is traditionally limited and much narrower than the scope of review on appeal. That is, on appeal, all errors below may be corrected: JD, procedure, and substance; and judgments below may be modified, reversed, remanded with directions, or affirmed.” (D) “Fourth, common-law certiorari will only lie to review judicial or quasijudicial action, never purely legislative action, in contradistinction to review by appeal which is provided by law and by which the legislature can authorize review of a wider scope.” -

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Common law certiorari “is a . . . writ which issues in the sound judicial discretion of the court to an inferior court, not to take the place of an appeal, but to cause the entire record of the inferior court to be brought up in order that it may be determined from the face thereof whether the inferior court has exceeded its JD, or has not proceeded according to the essential requirements of the law . . . Failure to observe the essential requirements of law means failure to accord due process of law within the contemplation of the Constitution, or the commission of an error so fundamental in character as to fatally infect the judgment and render it void . . . .” State v. Smith, 118 So. 2d 792 at 795 (Fl. 1st DCA 1960). (4) State v. Pettis (Fla. 1980) - State made a motion in limine to prevent Pettis from questioning a police officer about reprimands that the officer had received long ago with another police force. Trial court denied the motion. - State filed a petition for a writ of certiorari. - The Fourth DCA granted cert. and quashed the trial court’s order denying the motion in limine. - DCA had ability to entertain State's petition for certiorari to review pretrial evidentiary order. - Although trial judge erred in permitting police officer to be questioned concerning reprimands he received which were unrelated to defendant's offense, ruling was not a departure from essential requirements of law and did not warrant certiorari relief. - Pettis filed a motion for rehearing, arguing that the State didn’t have authority to appeal the trial court’s order by a writ of cert. in the first place. - FSC affirmed the DCA: (A) Review of non-final orders (like a denial of a motion in limine) is controlled by court rule. (B) State appeals of non-final orders are set forth in Fla. R. App. P. 9.140(c)(1)(B). In addition, Rules 9.130, 9.100 and 9.110 provides for appellate review of non-final orders by a DCA. (C) Review of non-final orders not set forth in either rule is governed by Cert. JD. (D) Cert. provides a remedy only where the petitioner meets the heavy burden of showing that a clear departure from the essential requirements of law has resulted in otherwise irreparable harm. (E) It is rare that erroneous interlocutory rulings can be corrected by cert. (F) If the requirements permitting cert. exist, a pre-trial order excluding evidence which as the effect of significantly impairing the ability of the state to prosecute the case is subject to cert. review. (G) If cert. review was not allowed, the state would have to go to trial significantly impaired. (H) In this case, however, the trial court did not depart from the essential requirements of law by denying the state’s motion. Essential requirements are departed from when there has “been a violation of a clearly established principle of law resulting in a miscarriage of justice. Therefore, cert. was not proper. 3. Circuit Courts and County Courts—Art. V, § 5(b); Art. V, § 6(b) a. Circuit Court Jurisdiction—The circuit courts shall have original JD of appeals when provided by general law. They shall have the power to issue writs of mandamus, quo warranto, certiorari, prohibition and habeas corpus, and all writs necessary or proper to -

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b. c. d.

e.

the complete exercise of their JD. JD of the circuit court shall be uniform throughout the state. They shall have the power of direct review of administrative action prescribed by general law. County Court JD—The county courts shall exercise the JD prescribed by general law. Such JD shall be uniform throughout the state. Once the circuit court renders an opinion in an appeal from a county court, the matter may not be appealed to the DCA, but it may be reviewed by a common law writ of cert. G-W Development Corporation v. Village of N. Palm Beach Zoning Board (Fl. 4th DCA 1975) (1) ISSUE—Do the circuit courts have JD to review a quasi-judicial decision of a municipal zoning board? (2) The DCA ruled that it does. (A) Art. V, § 5(b) gives circuit courts power of administrative action prescribed by general law. (B) Thus circuit courts, through this provision, can review admin. Action by common law cert. AND general law/statutory cert. (C) Common law cert. is available only “where no direct appellate proceedings are provided by law.” - It is entirely discretionary by the DCA, but allowed only where the lower court departed from the essential requirements of law, no other appellate remedies exist, AND the departure results in a significant impairment to the appealing party. - It may be used to review judicial or quasi-judicial action. (D) Since the part of the provision authorizes circuit courts to issue writs of cert. and the last sentence confers power of direct review by general law or statutory cert., the drafters intended for circuit courts to exercise both methods of cert. JD. (E) Where the legislature fails to provide for a method of review, common law cert. may be used. (F) Pleadings should show facts that cause the circuit court to see that the AA’s action was quasi-judicial or judicial. (G) The DCA reversed the circuit court’s order dismissing the appellant’s complaint w/prejudice and remanded for review. Board of County Commissioners v. Casa Development, Ltd. (Fl. 2d DCA 1976) (1) Hillsborough BCC’s denied an application for the issuance of a water and sewer franchise for an unincorporated area of the county. (2) Casa appealed to the circuit court by common law cert. The circuit court reversed the HBCC’s decision and ordered the franchise’s issuance. (3) ISSUE—Do circuit courts have JD to review a BCC? (4) The DCA ruled that they do not, but that a remand was necessary for the appellants to have their day in court. A case should not be dismissed because the wrong remedy was chosen. - Where agencies or BCC’s act in a quasi-executive or quasi-legislative capacity, the proper method of review is a suit in circuit court for declaratory or injunctive relief on grounds that the action is arbitrary, confiscatory or violative of constitutional guarantees. - The action of the BCC was quasi-legislative in nature: unsworn statements/no testimony, discussion instead of formal process, record was not the record of a quasi-judicial hearing. - Common law cert. was therefore the improper remedy.

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(5) Appellant’s reliance on an invalid Special Act in choosing common law cert. as a method of review should not preclude the appellants from being heard, so the DCA reversed and remanded for the case to be tried for declaratory or injunctive relief. f. Board of County Commissioners of Brevard County v. Snyder (Fla. 1993) (1) The BCC reversed a decision of the zoning board granting Snyder’s request to rezone their property. (2) Snyder applied for common law cert. to the circuit court, which affirmed the BCC. (3) Snyder then applied for common law cert. to the DCA—SOR: (initial zoning board [legislative action] is affirmed if their decision was “fairly debatable”—if there is some basis for the zoning board’s decision. STRONG PRESUMPTION FAVORING THE AA. (4) The standard for quasi-judicial determinations (applying a general rule or policy to specific individuals) is stricter and doesn’t favor the AA as much (clear and convincing evidence that AA action was appropriate). (5) The DCA used the stricter standard and required the BCC to show why Snyder couldn’t use the land how he wanted and ruled for Snyder. (6) The BCC applied to the FSC for review: - The SOR is different than the one applied by the DCA—an AA doesn’t have such a heavy burden and the law does not presume that the landowner is correct. - The initial burden is on the landowner to show that his/her proposal is consistent with the city plan. - The AA must then show that there is a legitimate public interest in not allowing the rezoning. - The AA must also show that the decision/denial is not arbitrary, capricious, or unreasonable. - The FSC did agree with the DCA, however, that rezoning petitions are quasi-judicial and that initial zoning enactments are quasi-legislative. g. Section 28 Partnership, Ltd. V. Martin County (Fl. 4th DCA 1994) (1) Martin County refused to approve 28’s plan to develop land as a planned unit development (PUD). The land was zoned as single family unit dwellings where 28 wanted condo’s stores, golf courses, etc. (2) 28 appealed by common law cert. to the circuit court, which denied the writ’s petition on the grounds that the county’s decision was quasi-legislative. The proper remedy was therefore declaratory judgment or injunctive relief. (3) The DCA affirmed— - Snyder allows writs of common law cert. to review quasi-judicial matters, but not quasi-legislative. (A) The action must affect 1 person or a small group. (B) The outcome must be contingent on facts produced at a hearing. (C) The AA’s decision must be viewed as an application rather than policy setting. - In this case, Martin County formulated policy—amending the whole city plan for a huge area. - Declaratory judgment should have been the remedy under the fairly debatable standard. h. BCC of Sarasota County v. Karp (Fl. 2d DCA 1995)

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i.

j.

(1) The BCC adopted the “corridor plan”—Karp’s land was zoned for office space. Karp would have had less land value than if it was zoned commercial. The BCC refused to zone the land as commercial. (2) Karp appealed to the circuit court through common law cert. The BCC argued that its decision was quasi-legislative, requiring declaratory or injunctive relief under the fairly debatable standard. The circuit court ruled for Karp under common law cert. (3) The DCA reversed—BCC’s decision was quasi-legislative subject to the fairly debatable standard. - Applying policy to a particular piece of property is quasi-judicial. - The “corridor plan” applied to a huge # of pieces of property. The more people and parcels affected the more likelihood that the decision was quasi-legislative. - The proceedings were not judicial in nature and were policy-based. Grace v. Town of Palm Beach (Fl. 4th DCA 1995) (1) Grace applied for an exception that would allow him to have a private club (quasi-judicial). (2) Neighbors of Grace appealed the grant of the exception. (3) They had a 30-day period to file a petition for common law cert., which had passed. (4) The neighbors instead filed for declaratory judgment (longer filing period), arguing that the grant of an exception was quasi-legislative. (5) The DCA held that the decision was quasi-judicial and the remedy was limited to common law cert., which is no longer available because of the filing limit. - The decision only affected 1 individual. Dept. of Revenue v. Univ. Square, Inc. (Fl. 1st DCA 1976) (1) The Dept. assessed taxes against Univ. Square Mall for documentary stamps. (2) University filed for declaratory judgment against the Dept. (3) DCA ruled that JD is proper—AA remedies didn’t have to be exhausted if a tax assessment is challenged. The circuit court has original JD. Art. V, § 20; Fla. Stats 26.012; 68.01; 120.73.

C. Other Limitations on the Exercise of Judicial Power 1. Case or Controversy Requirement a. Ervin v. City of N. Miami Beach (Fla. 1973) (1) A state statute imposed speed limits in certain areas. North Miami passed an ordinance imposing lower speed limits within the city than the statute. (2) North Miami wanted to know if the ordinance was OK, since it conflicted with the state law. (3) The Attorney General (Ervin) wrote an advisory opinion that still confused the city. (4) The city filed in circuit court for declaratory relief. (5) The original complaint named no defendant. (6) Ervin entered the case on his own, answering the complaint and supporting the issues debate/conflict. (7) The City of Miami entered on the same side as N. Miami. (8) The circuit court ruled that the state statute did not preclude the ordinance. (9) Ervin appealed to the FSC. The FSC dismissed:

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A justiciable case or controversy must exist between parties to satisfy the case/controversy requirement. - Courts cannot give free legal opinions or advisory opinions. - The FSC dismissed “Ex Mero Muto”—on its own, without a motion to dismiss. (10) N. Miami could have waited until a driver had been cited and contested the citation. b. Southeastern Utilities Service Co. v. Redding (Fla. 1961) (1) An employer voluntarily paid workers’ comp. Without being ordered to do so. They wanted to take the employee’s deposition, even though the employee had not yet filed a claim for benefits. (2) The employer filed suit to have the issue answered by the AA. The AA answered that the employer could take the deposition. (3) The Employer appealed to the full Florida Industrial Commission, which reversed the AA officer. (4) The Employer appealed to the courts. (5) Appeal reached the FSC, but by then the employee had already filed a claim, giving the employer an unquestioned right to take the deposition (the point was rendered moot). (6) The FSC decided to take the issue anyway because the issue affected many people and was very important. (7) The FSC indicated that, as a general rule, the FSC should not take moot issues. (8) If the parties cannot be affected by the outcome of a case due to events taking place subsequent to the litigation’s creation, the point is moot. c. Montgomery v. HRS (Fl. 1st DCA 1985) (1) Montgomery received food stamps. A proposed rule required recipients to work for their stamps. The rule was going to be tested in 2 counties, neither of which was Orange County, the county in which Montgomery lived. (2) Montgomery filed suit with DOAH, attacking the rule and appealed to the DCA. (3) ISSUE—Does Montgomery have standing? (4) 2 Part Standing Test: - Injury which must be both real and immediate, not conjectured or hypothetical. - The issue litigated over must be in a “zone of interest” that the state wants to protect. (5) You do not have to wait for a rule to go into effect before the rule can be attacked. (6) Immediate injury that could occur fell within the state’s zone of interest in not perpetuating poverty. (7) Montgomery therefore met the standing requirements. (8) The fact that the program has not yet been enacted rendered the issue moot (should have been ripeness rather than mootness). d. Bryant v. Gray (Fla. 1954) (1) The Governor died in office. Bryant wanted to run for the open slot, but wanted a full term PLUS the remaining 2 years from the dead Governor’s term. (2) Bryant filed suit against the SOS for declaratory judgment. (3) The circuit court ruled for Bryant. The SOS appealed to the FSC. (4) The FSC ruled that the issue was not yet ripe and dismissed: -

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- Bryant had not yet run or even been nominated to run. - The FSC had to wait to see if this would at all apply. - The controversy must be a present one, requiring a current decision. - Hypothetical situations cannot be ripe. e. North Broward Hospital Dist. V. Fornes (Fla. 1985) (1) The district was a taxing district set up to raise tax revenue to operate and build hospitals in the district. (2) One guideline required the district to competitively bid for projects that cost over $5000. (3) Fornes, as a taxpayer, objected to a specification in a job that only allowed one concrete company in the area to be capable of servicing the specification. (4) Fornes sued for declaratory and injunctive relief requiring the process to begin again with a different specification. (5) She sued only as a taxpayer of the district and was not personally involved. (6) The district moved to dismiss. The trial court granted the motion. (7) The DCA reversed, ruling that status as a taxpayer is sufficient for standing. (8) The FSC reversed the DCA—taxpayer standing does not sufficient: - A taxpayer may have standing if a constitutional challenge is brought AND the challenge affects the taxpayer personally. - Otherwise, the plaintiff must show a specialized injury beyond what the general public sustains. - EX—Article IV, §§ 3 and 4: (A) Municipalities are exempt from taxation. What if a municipality engaged in a private business? (9) DISSENT—If the government is engaging in illegal expenditures, a taxpayer should be allowed to go after the illegal waste of taxpayer money. f. US Steel Corp. v. Save Sand Key, Inc. (Fla. 1974) (1) US Steel was building on Sand Key and put fences up that blocked access to the beach. (2) Save Sand Key joined with the Florida Atty General and filed suit, arguing that longstanding customs gave citizens a right to use the beach. (3) ISSUE—Does Save Sand Key have citizen standing? (4) US Steel argued that Save Sand Key alleged no specific harm to it. (5) The DCA reversed the trial court, thereby allowing citizen standing. (6) The FSC reversed the DCA: - A special injury must be shown; the same injury to the general public is not enough. - It is too difficult to know if corporations represent the views of its members. - For standing of associations, See Hillsborough County v. Florida Restaurant Assn., p. 310 n. 87. 2. Political and Other Non-Justiciable Questions a. Harden v. Garrett (Fla. 1985) (1) Harden wanted to question the results of a legislative election. (2) The circuit court dismissed—Art. III, § 2 makes the legislature the sole judge of its members’ elections. (3) The DCA certified to the FSC as a question of great public importance. (4) The FSC affirmed the circuit court:

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The FSC harmonized 2 conflicting provisions by holding that the provisions’ histories indicate the legislature’s authorization to govern its own elections. - Other elections may be challenged in court unless another constitutional provision applies. - Exceptional circumstances may allow suit (EX—a legislative rule that bars certain races from running). 3. Avoidance, Where Possible, of the Exercise of Judicial Review a. Stembridge v. Harwitz (Fla. App. 1974) (1) Harwitz put a list of charges under Stembridge’s door 6 days prior to an election. Both were running for mayor. (2) A City of N. Miami ordinance required personal service of such charges 5 days prior to an election. (3) The trial court ruled that the ordinance was unconstitutional after ruling that Harwitz didn’t violate the ordinance. (4) The DCA ruled that since the case had already been ruled on and adjudicated, the opinion regarding unconstitutionality was unnecessary. (5) The DCA reversed and remanded for an opinion that passed on the ordinance’s constitutionality. 4. Relationship Between Levels of State Courts a. DCA’s may follow their own inclinations unless another DCA has ruled on the issue OR the DCA itself has already ruled and does not want to overrule its existing law. b. If there is a rule on an issue by one DCA that is uncontested, it is binding law for all of the DCA’s (the whole state). Circuit and county courts are bound by the uncontested DCA’s law also. c. Pardo v. State (Fla. 1992) (1) “As between DCA’s a sister DCA’s opinion is merely persuasive.” d. State v. Lopez (Fl. 5th DCA 1992) (1) Circuit courts act as appellate courts for the county courts. (2) ISSUE #1—Must a county court follow the precedent of the circuit court for that county only or may it follow circuit court precedent for other counties in that circuit? (3) ISSUE #2—Must a circuit court only use its precedent for that county or other circuit court precedent from other counties in that circuit? (4) Lopez drove in a private parking lot without a license. (5) He was arrested in Osceola County for driving on a public street. (6) The county court ruled for Lopez, following precedent of the Circuit Court for Osceola County. The county judge felt that he HAD to follow that precedent. (7) The circuit court affirmed. The DCA reversed and remanded—a county judge may use precedent coming from all circuit courts, even if those circuit courts use precedent from other counties in that circuit. (8) A circuit court sitting in its appellate capacity is required to consider all decisions of that circuit when searching for precedent upon which to base its decision, and in the absence of a rule of procedure to resolve conflicts among decisions, to make its independent decision. 5. En Banc Rehearing by DCA’s a. En Banc—A hearing of a case by every judge in a DCA instead of 3-judge panels. b. FSC allowed en banc decisions. c. Chase Federal v. Schreiber (Fla. 1985) -

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(1) Cournoyer tricked Ross (elderly woman) into signing her property’s deed to him for love and affection. (2) Ross sued to invalidate the deed for lack of consideration. (3) The trial court ruled that since Cournoyer conveyed to Perez, Perez had BFP status and legal title; lack of consideration gave Ross equitable title, allowing the court to put Cournoyer’s money from the sale into a trust for Ross. (4) Ross appealed, arguing that the deed on its face prevented Perez from being a BFP. (5) The DCA issued a PCA; Ross moved for a rehearing en banc, which was granted. (6) A majority en banc ruled for her; lack of consideration existed AND the deed was invalid on its face. (7) The FSC reversed and agreed with the trial court: - En banc can be granted where there is a decisional conflict within that DCA. - But DCA’s can create their own definitions regarding what constitutes “decisional conflict.” (8) There is a difference between federal and state en banc rules: - Federal—CCOA can hear en banc in “cases of exceptional importance.” - Florida—En banc can only be used to hear cases of intra-jurisdictional conflict (conflict within the DCA). 6. Effect of Lower Federal Court Decisions Regarding Federal Constitution/Federal Law a. The USSC is binding on the courts of Florida. b. The decision of ANY other federal court does NOT bind the courts of Florida (EX—the 5th DCA is NOT bound by decisions of the 11th CCOA regarding federal law).

V. LOCAL GOVERNMENT A. In General 1. City of Miami v. Lewis (Fl. 3d DCA 1958) a. Civil court required the City to post bond on appeal to the 3d DCA. b. Fl. Stat. 59.14 waives the bond requirement for political subdivisions of a state. c. ISSUE—Is the City a political subdivision for purposes of 59.14? d. 59.14 was revised in 1945 to include the state or its political subdivisions. This evidenced the Legislature’s intent to broaden the coverage of the statute. e. The City is therefore a political subdivision. B. Counties—Art. VIII, § 1(a) 1. Political Subdivision—This state shall be divided by law into political subdivisions called counties. Counties may be created, abolished or changed by law, with provision for payment or apportionment of the public debt. 2. Non-Charter Counties—Art. VIII, § 1(f) a. Counties not operating under county charters shall have such power of self-government as is provided by general or special law. The board of county commissioners of a county not operating under a charter may enact, in a manner prescribed by general law, county ordinances not inconsistent with general or special law, but an ordinance in conflict with a municipal ordinance shall not be effective within the municipality to the extent of such conflict.

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b. Counties whose source of power emanates from legislative authority are noncharter counties. c. The state legislature can control these counties. d. Current statutes give non-charter counties broad power to regulate themselves. e. Municipal ordinances control over conflicting county ordinances. f. Speer v. Olson (Fla. 1978) (1) The BCC for Pasco County created a taxation unit for water and sewer systems. (2) Residents of the unit approved a $41.5 million general obligation bond by the unit. (3) Appellants were taxpayers who sued to contest the legality of the election, arguing that the non-charter county did not have power to create bonds. (4) The circuit court validated the bonds. The appellants appealed to the FSC directly per Art. V, § 3(b)(2)—bond validation hearings JD (non-discr.) (5) The FSC affirmed the circuit court: - Chapter 125 gives counties the power to provide and regulate waste, sewage and water. - Chapter 125 also gives power to establish taxation and bonds to support those services. - By enacting Chapter 125, the legislature intended to enlarge the powers of counties to govern themselves by operation of the HOME RULE. - HOME RULE—Unless the legislature has preempted an action or particular bond, the county has power to govern itself through that action or bond. - The county was simply acting on this delegated authority, no preemption exists from the legislature, so the bond is valid. g. Misty’s Café, Inc. v. Leon County (Fl. 1st DCA, 1994) (1) Misty’s was enjoined from operating a bottomless restaurant in Leon County. (2) A county ordinance stated that showing bottoms (butt or genitals) in an alcohol-serving establishment is illegal. (3) A municipal ordinance only outlawed the showing of breasts in such an establishment. (4) Misty’s dancers only showed bottoms, complying with the city ordinance. (5) DCA affirmed the injunction: - The ordinances coexisted; they were not mutually exclusive. - They were not in conflict, instead supplementing each other. - The court stretched to reach its desired result. 3. Charter Counties—Art. VIII, § 1(g) a. Charter Government. Counties operating under county charters shall have all powers of local self-government not inconsistent with general law, or with special law approved by vote of the electors. The governing body of a county operating under a charter may enact county ordinances not inconsistent with general law. The charter shall provide which shall prevail in the event of conflict between county and municipal ordinances. b. Charters possess more autonomy than non-charters. c. Their source of power is their county charter. d. Hollywood, Inc. v. Broward County (Fl. 4th DCA 1983) (1) The developer (Hollywood) created a subdivision and was required by the county to pay a fee to help provide services to the subdivision. (2) The county ordinance required land, value of land, or an impact fee. (3) The developer sued arguing that the county did not have power to impose the fee.

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(4) The DCA affirmed the trial court and county ordinance: - The county can exercise all powers of government that it wants if it is a charter so long as it does not violate state or federal law. - No state/federal law bars the county’s action. - The exactions for county level parks are permissible so long as: (A) The exactions are shown to offset, but not exceed, reasonable needs sufficiently attributable to the new subdivision residents, AND (B) The funds collected are adequately earmarked for the acquisition of capital assets that will sufficiently benefit those new residents. e. McLeod v. Orange County (Fla. 1994) (1) The county passed a local ordinance to issue bonds; bonds were to be paid with the proceeds of its improvements funded by the bonds. (2) McLeod objected at the bond validation hearing. (3) On appeal, he argued that the county had no general law authorizing it to issue the bonds. (4) The FSC affirmed the bonds: - The Florida Constitution allows counties to levy ad velorum taxes and MAY BE authorized to raise other funds by general law. - Counties under charters have all powers not inconsistent with general law. - The two requirements together mean that a non-charter county needs a general law but that a chartered county already has power UNLESS a general law prohibits the action. - Good example of how charter counties have more power than noncharters. C. Municipal Corporations 1. In General a. State ex. rel Lee v. City of Cape Coral (Fla. 1973) (1) The City of Cape Coral was established by an act of the legislature in 1970. (2) The people had to approve the special act by referendum vote. (3) The act also incorporated another 70 square miles (much less populated than the other 30 square mile area and had no municipal services). (4) The people of the 70 square mile area did not want to pay the taxes of a city. (5) The far more numerous population of the 30 square mile area passed the law. (6) The 70 square mile residents filed for a writ of quo warranto, requiring the people of the city to justify their imposing municipal taxes. (7) They 70’s argued that the special act was unconstitutional. (8) The trial court divided the 100 square mile total into 3 parts: - The original 30 square mile area, using municipal services, became part of the new city. - Another 30 square mile area, currently building rapidly, not yet using municipal services but sure to do so, did not have to pay taxes until receiving the services. - The other 40 square miles were not developed, not using services, and not part of the city. (9) The FSC PCA’d the trial court: - ERVIN DISSENT: (A) The area is going to grow so as to need services based on Florida’s population boom.

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(B) The state legislature planned ahead comprehensively by enacting the statute. (C) The county now has to provide the services; incorporation will eventually be needed anyway. 2. Municipal Home Rule Power a. Opinion of the Attorney General (7/17/73) (1) This was a letter to a state representative. (2) ISSUE—Can a municipality, through its Home Rule Power, enact a rent control ordinance where it determines that it would be in the best interest of the health, safety, and welfare of its citizens? (3) Art. VIII, § 2(b) allows municipalities to exercise any power for “municipal purposes” except as otherwise provided by law. (4) The FSC, in Fleetwood Hotel (1973) ruled that the broad constitutional provision did not give the cities power to enact rent control. (5) The legislature, that next year, strengthened the Home Rule Power—cities have all power that states have unless specifically prohibited from doing so. The intent was to remove limitations on city power to act on its own. (6) The legislature can pass rent control statutes, so cities should now have that same power. (7) The legislative history shows that this was the intent of the legislature (attempted amendment to prevent city rent control was shot down). (8) Rent control ordinances are attacked by landlords because they infringe on the landlord’s right to property. (9) Prior jurisprudence, however, required an emergency to justify rent control. b. City of Venice v. Valente (Fl. 2d DCA 1983) (1) A Venice ordinance allowed it to put an end to a public nuisance (overgrown yards, buildings in poor shape, etc.). (2) Valente owned such a building; the City ordered her to repair or tear the building down within 60 days. She did nothing and the City sought injunctive relief and attorneys’ fees. (3) The City and Valente stipulated to make repairs but could not settle on the attorneys’ fees issue which remained before the court. (4) The trial judge threw the whole ordinance out as unconstitutional and the City appealed. (5) ISSUE—is the ordinance for a valid “municipal purpose”? (6) Municipal Purpose —activity which may be exercised by the state. Fl. Stat. 166.021(2). (7) The state can abate nuisances, so the municipality should as well. (8) Attorneys’ fees can be required by the state, so a municipality should have power to recover them as well. (9) Limits - The ordinance cannot violate the constitution. - The ordinance cannot violate a statute prohibiting the action. - If the state has preempted the subject, a municipality cannot interfere with its own ordinances. (A) A “clear and express” preemption must exist. The state must indicate that it does not want cities to be involved. No such statement existed regarding attorney fee awards. c. City of Ocala v. Nye (Fla. 1992) (1) The City eminent domained a strip of land for purposes of widening a street.

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(2) Businesses (tenants) along this strip wanted damages. The owners of the buildings had been paid already through the condemnation proceedings and were uninvolved. The Businesses argued that less parking and less aesthetic attractiveness of the area would disrupt their businesses (future loss of earnings). (3) The City condemned the entire tract of land, businesses included, even though the city didn’t need to do so for purposes of widening the street. (4) The FSC reversed the DCA’s decision in favor of the businesses: - Art. VIII, § 2(b) and Chapter 166 allow cities to act for any “municipal purpose.” - The state can condemn land even if it is not specifically needed, so municipalities can do the same absent a specific preemption/prohibition by the state. - No prohibition existed, so the City’s action is lawful. - Saving the taxpayers money in the form of future earnings damages is a municipal purpose as well. d. Basic Energy Corp. v. Hamilton County (Fl. 1st DCA 1995) (1) The County and City of Jasper wanted a state prison and started condemnation proceedings to obtain the necessary land to donate to the state. The corporation owning the land sued. (2) The circuit court ruled for the County and City. (3) The DCA reversed (BAD OPINION): - Not a valid municipal purpose: the City’s actions were geared toward achieving a state purpose rather than a municipal one. - BAD OPINION BECAUSE 300 LOCAL JOBS WERE CREATED (ISN’T THAT A VALID MUNICIPAL PURPOSE???) 3. Merger of Municipal Corporations and Annexation of Municipal Corporations a. City of Long Beach Resort v. Collins (Fla. 1972) (1) In 1970, Florida passed laws to merge small municipalities into one. (2) Annex—to take outlying land into a city (Panama Beach) (3) Residents of small cities involved did not have a referendum vote, but residents of an unincorporated area were given a referendum vote. (4) The City residents petitioned for quo warranto and a declaratory judgment against the state statute on EP and DP grounds. (5) The FSC upheld the statute (BAD OPINION): - The state legislature has power over mergers and annexations under Art. VIII, § 3. - The FSC should have spent more time on voting. The statute under fire was a special law, requiring notice OR referendum in the affected areas. Neither existed here. b. SCA Services of Florida v. Tallahassee (Fl. 1st DCA 1982) (1) The City annexed land with shopping malls per Fl. Stat. 171.021. (2) SCA collected garbage at the malls. Annexation required use of city garbage collectors, putting SCA out of a job. (3) SCA sued for quo warranto. (4) The legislature passed the statute limiting a city’s power to annex. (5) The limits do not prohibit what a city is to annex, but gives a specific method by which annexation must occur. (6) So long as a city follows the method, it can annex wherever it wants. (7) In addition, review is by certiorari (within 30 days of annexation) according to the statute, not quo warranto.

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(8) The DCA affirmed the dismissal of SCA.

LIST OF CASES BY CHAPTER CHAPTER 7— DECLARATION OF RIGHTS Traylor Long Shriners Hospital, I and II Mckenzie Tank Lines Rollins Hillsborough Cty. Aviation Auth. Pomponio Dugger L. Maxcy, Inc. Saiez Lite Dade County Consumer Adv. Faircloth Hume La Rosa Kluger Winfield Barron In Re TW In Re Guardianship of Browning Krischner Cox Matthews Kurtz Jones v. State BB Mid-Florida Growers CHAPTER 1— INTRO. TO STUDYING THE FL. CONST. Meeks Gray Fine Askew Grose Division of Bond Finance Folks Briley Burnsed Town of Davie State ex rel. Bolon City of St. Augustine Greater Loretta Improvement Assn.

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CHAPTER 2— SEPARATION OF POWERS Shands Teaching Hospital SW Regional Medical Ctr. Brown v. State Town of Loxley Dade Cty. CTA Blood Service Plan Florida Police Benevolent Assn. United Faculty Sepe Jones v. Chiles In Re Advisory Opinion Rich Delta Truck Brokers Astral Liquors MAR Carnegie CHAPTER 3— THE LEGISLATURE Canova Santos State v. Johnson North Ridge Gen. Hospital Opinion of the Atty General St. Johns River Water Mgmt. District Sanford-Orlando Kennel Club Pinellas Cty. Veterinary Medical Society Bessenger GAC Utilities State v. Roberts Palm Beach Local 1866, IAFF Florida Society of Opthamology CHAPTER 4— THE COURTS Lewis Sarasota Classified/Teachers Assn. Spradley Florida First National Bank of Jacksonville Niemann Skinner Bailey Jenkins Dodi Publishing Co. Stevens v. Jefferson Ford Motor Co. v. Kikis Jollie Hyster Company Worling

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Stupack Jenkins Order Aviation Services Rupp Petrik Mandau Teachers Insurance Company Moffitt English Besoner St. Paul Title Insurance Co. Couse Furen Vaillant Seminole Board of County Commissioners v. Long Educational Development Ctr. Cherokee Crushed Stone Sweetwater Utility Corp. Yamaha Intl. Corp. State Comm. on Ethics Ford Motor Co. v. Ward Futch Cash Dresner Heggs Pettis G-W Development Corp. Casa Development, Ltd. Snyder Section 28 Partnership, Ltd. Karp Grace Univ. Square, Inc. Ervin Redding Montgomerty Bryant v. Gray Fornes Save Sand Key, Inc. Harden Stembridge State v. Lopez Chase Federal CHAPTER 5— LOCAL GOVERNMENT Lewis Speer Misty’s Café Hollywood, Inc. State ex. rel Lee

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State ex. rel Lee Opinion of the Atty General Valente Nye Basic Energy Corp. Collins SCA Services of Florida

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