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First DCA Update

Legislative Powers At Issue  

The nature and extent of legislative power has been the focus of three recent cases decided by the First District Court of Appeal.

In the first case, Graham v. Haridopolis,[i] at issue was the power of the Legislature to establish and expend state university tuition and fees in light of the adoption of Article IX, Section 7(d) of the State Constitution by the electorate at the November 2002 general election.  The appellants argued that the amendment effectively transferred the power to set and expend university tuition fees from the Legislature to the Board of Governors, which under the amendment was empowered to “operate, regulate, control, and be fully responsible for the management of the whole university system.”[ii]

The Court rejected this argument, noting that “[t]he Florida Constitution vests the ‘power of the purse’ in the Legislature by granting it exclusive and plenary authority to raise[iii] and appropriate[iv] state funds.”[v]  The Court further noted:

The legislative power to raise funds is not limited to the imposition of taxes; it includes the power to impose fees necessary to offset the costs of using state government services,  Likewise, the power to appropriate is not limited to certain types of funds; it extends to all funds in the State Treasury from whatever source.[vi]

 (Emphasis in text.)  “University tuition and fees are unquestionably state funds; they are collected by state universities for the use of their services and the monies collected are deposited into the state treasury.”[vii]

In the second case, Florida Gaming Centers, Inc. v. Florida Department of Business and Professional Regulation,[viii] at issue was the power of the Legislature to regulate slot machine gambling, in light of the adoption of Article X, Section 23 of the State Constitution by the electorate at the November 2004 general election.  The appellants argued that the amendment limited slot machine gambling to certain facilities in Miami-Dade and Broward Counties.[ix]

The Court rejected this argument, noting that “the only thing that Article X, section 23 limited was the Legislature’s authority to prohibit slot machine gaming in certain facilities in the two counties.”[x]  The Court further noted:

… Article X, section 23 provides no indication that Florida voters intended to forever prohibit the Legislature from exercising its authority to expand slot machine gaming beyond those facilities in Miami-Dade and Broward Counties meeting the specified criteria, Nor is there any indication that Florida voters intended to grant the seven entities who met the criteria a constitutionally-protected monopoly over slot machine gaming in the state.

Thus, it appears that the Court opened the door to the Legislature to exercise its near plenary powers over gambling to authorize slot machine gambling beyond those facilities in Miami-Dade and Broward Counties referenced in Article X, Section 23 of the State Constitution.[xi] 

In the third case, Haridopolis v. Citizens for Strong Schools, Inc.,[xii] at issue are “significant, but unsettled questions about Florida’s ‘paramount duty’ to provide ‘for the education of all children residing within its borders’” in accordance with Article IX, Section 1(a) of the State Constitution.[xiii]  The question before the Court is whether the educational adequacy provisions in the State Constitution are judicially enforceable. 

In denying a petition for a writ of prohibition, a sharply divided First District Court of Appeal deciding case en banc concluded that the trial court did not act outside of its jurisdiction in denying a motion to dismiss complaint because it “raises only nonjusticiable ‘political’ questions … questions which the trial court – and, indeed, any court (according to petitioners – lacks jurisdiction to entertain.”[xiv]  While noting that the trial court had jurisdiction to grant declaratory relief on the complaint, the majority cautioned that it was “uncertain as to whether – and do not decide that – the trial court has any ability to grant relief beyond that point.”[xv] 

Recognizing the significance of the issue presented in this case, the majority certified the following question to the Florida Supreme Court as being a question of great public importance:

Does Article IX, Section 1(a), Florida Constitution, set forth judicially ascertainable standards that can be used to determine the adequacy, efficiency, safety, security, and high quality of public education on a statewide basis, so as to permit a court to decide claims for declaratory judgment (and supplemental relief) alleging noncompliance with Does Article IX, Section 1(a), Florida Constitution?[xvi]

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[i] Case No. 1D11-384 (Fla. 1^st DCA October 12, 2011).

[ii] See Article IX, Section 7(d) of the State Constitution, cited at slip opinion p. 3.

[iii] Case No. 1D11-384 (Fla. 1^st DCA October 12, 2011), note 3 in slip opinion:  “Article VII § 1(d), Fla. Const. (“Provision shall be made by law for raising sufficient revenue to defray the expenses of the state for each fiscal period.”).

[iv] Id. note 4 in slip opinion:  “Article VII § 1(d), Fla. Const. (“No money shall be drawn from the state treasury except in pursuance of appropriation made by law.”).

[v] Id. slip opinion p. 4.

[vi] Id. slip opinion p. 5.

[vii] Id. slip opinion p. 6.

[viii] Case No. 1D10-6780 (Fla. 1^st DCA October 6, 2011).

[ix] Id. slip opinion p. 6.

[x] Id. slip opinion p. 6.

[xi] The appellants before the District Court have sought to have the Florida Supreme Court exercise its discretionary jurisdiction to hear this case.  See Florida Gaming Centers, Inc. v. Florida Department of Business and Professional Regulation, Case No. 11SC-2182 (Fla.).

[xii] Case No. 1D10-6285 (Fla. 1^st DCA November 23, 2011).

[xiii] Id. slip opinion p. 2.

[xiv] Id. slip opinion p. 3.

[xv] Id. slip opinion p. 15.

[xvi] Id. slip opinion p. 16.

 

First District Court of Appeal Update

Government-in-the-Sunshine

 

“[N]othing in this decision gives the public the right to be more than spectators.”  Wood v. Marston, 443 So. 2d 934, 937 (Fla. 1983). 

 

Relying on this language, which it concedes is dicta, the First District Court of Appeal held that the phrase, “open to the public,” in Florida’s government-in-the-sunshine law, Section 286.011(1), Florida Statutes, did not grant the public the right to speak at a public hearing.  Kessler v. Community Maritime Park Associates, Inc., Case No. 1D09-1695 (Fla. 1st DCA March 10, 2010, which can be found here.

 

Rather, the Court concluded that the remedy sought – the right to speak at a public hearing of a not-for-profit corporation charged by the City of Pensacola with overseeing the development of a parcel of public waterfront property – “is more appropriately left to the legislative process or the local public officials to whom the … board members are accountable.” Slip opinion at p. 4.

 

Prepared by:    Mark Herron

    mherron@lawfla.com

First District upholds constitutionality of the "Save our Homes" Amendment, Article VII, Section 4(c), Florida Constitution.

Today, the First District Court of Appeal upheld the constitutionality of the "Save our Homes" Amendment, Article VII, Section 4(c), Florida Constitution, in Lanning v. Pilcher, Case No. 1D07-6564 (Fla. 1st DCA Aug. 26, 2009), which can be found here.

In an opinion authored by Judge Padovano, the Court held that Save our Homes is valid under the United States Constitution, that it does not violate a nonresident's rights under the Equal Protection Clause, the Privileges and Immunities Clause, or the Commerce Clause, and that Section 193.155, Florida Statutes, the law implementing the amendment, was constitutionally valid.  Judges Barfield and Lewis concurred in the opinion.

First District Rules that Judicial Records are Not Subject to Chapter 119

In an opinion issued June 1, 2009, the First District Court of Appeal reiterated that courts are not "agencies" under Florida's Public Records Act, Chapter 119, Florida Statutes.  Morris Publishing Group, LLC, d/b/a The Florida Times Union v. State of Florida, Case No. 1D09-1474 (Fla. 1st DCA June 1, 2009), which can be found here.  The Court points out that public access to records of the judicial branch is governed by Rule 2.420, Florida Rules of Judicial Administration, which, in part, requires that "[r]equests for access to records shall be in writing and shall be directed to the custodian."  Rule 2.420(f).  Under Chapter 119, Florida Statutes, no written request for public records is necessary.

Requirements for disclosure of "records of the judicial branch" pursuant to Rule 2.420, Florida Rules of Judicial Administration, appear to vary from requirements of disclosure under Chapter 119 as well.  Recently, the Second District Court of Appeal held that the audio recording of a sentencing hearing "created by the digial electronic reporting system is not, in and of itself, an 'electronic record' of the proceeding."  The Court concluded that the audio recording "is merely a 'precusor' of a record[.]"  Media General, Inc. v. State of Florida, Case No. 2D08-1154 (Fla. 2d DCA May 6, 2009), which can be found here.  The Court noted that under Rule 2.420(f), the custodian of court records shall determine the form in which the record is provided.  In the Media General case, the custodian elected to provide a written transcript of the sentencing hearing, but not the underlying audio recording of the hearing as requested.