589 So.2d 260 (Fla. 1991), 78792, Chiles v. Children A, B, C, D, E, and F

Docket Nº:78792.
Citation:589 So.2d 260
Opinion Judge:Author: Barkett
Party Name:Lawton CHILES, etc., et al., Appellants, v. CHILDREN A, B, C, D, E, AND F, etc., Appellees.
Attorney:J. Hardin Peterson, General Counsel and Deborah K. Kearney, Deputy General Counsel, Office of the Governor, Tallahassee, Florida; Robert A. Butterworth, Attorney General; Richard E. Doran, Louis R. Hubener and Charles A. Finkel, Assistant Attorneys General, and Robert P. Smith, Jr., Special Assis...
Case Date:October 29, 1991
Court:Supreme Court of Florida

Page 260

589 So.2d 260 (Fla. 1991)

Lawton CHILES, etc., et al., Appellants,


CHILDREN A, B, C, D, E, AND F, etc., Appellees.

No. 78792.

Supreme Court of Florida.

October 29, 1991

Page 261

J. Hardin Peterson, Gen. Counsel, and Deborah K. Kearney, Deputy Gen. Counsel, Office of the Governor, Robert A. Butterworth, Atty. Gen., Richard E. Doran, Louis R. Hubener and Charles A. Finkel, Asst. Attys. Gen., and Robert P. Smith, Jr., Sp. Asst. Atty. Gen. of Hopping, Boyd, Green & Sams, Tallahassee, and Michael J. Neimand, Asst. Atty. Gen., Miami, Dept. of Legal Affairs, and Sydney H. McKenzie III, Gen. Counsel, Dept. of Educ., Tallahassee, for appellants.

Karen A. Gievers and Nancy La Vista of Karen A. Gievers, P.A., Miami, for appellee.

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Nancy S. Palmer of Dean, Mead, Egerton, Bloodworth, Capouano & Bozarth, P.A., Orlando, amicus curiae for State of Fla. guardian ad litem program.

Christina A. Zawisza, Children First Project Director, Legal Services of Greater Miami, Inc., Miami, and Cindy Huddleston, Anne Swerlick and Kathy Grunewald, Florida Legal Services, Inc., Tallahassee, amicus curiae for Children First: A Joint Project in Law, Medicine, and Educ. and Florida Legal Services, Inc.

Jack L. McLean, Jr., Kristine E. Knab and Edward J. Grunewald, Legal Services of North Florida, Inc., Tallahassee, amicus curiae for Orange Avenue United Tenants Ass'n, Inc. and Oliver Hill, Sr.

Pamela L. Cooper of Florida Teaching Profession-National Educ. Ass'n and Thomas W. Young, III and Sally Gertz of Florida Educ. Ass'n United, Office of Gen. Counsel, and Ronald G. Meyer of Meyer and Brooks, P.A., Tallahassee, amici curiae for Florida Teaching Profession-National Educ. Ass'n (FTP-NEA) and Florida Educ. Association/United (FEA/U).

John D. Carlson of Gatlin, Woods, Carlson & Cowdery, Tallahassee, amici curiae for Florida School Boards Ass'n, Inc. and The Florida Ass'n of Dist. School Superintendents, Inc.

Thomas R. Tedcastle, Jose Diez-Arguelles, Richard Herring, Thomas R. McSwain and Mitchell J. Rubin, Florida House of Representatives, Tallahassee, amici curiae for T.K. Wetherell, Speaker of the Florida House of Representatives and Ron Saunders, Chairman of the Committee on Appropriations of The Florida House of Representatives.

Jon L. Mills, Gainesville, amicus curiae.

Joseph W. Little, Gainesville, interested party.

BARKETT, Justice.

We have for review the order of the Eleventh Judicial Circuit, in and for Dade County, Florida, in which the court declared unconstitutional sections 216.011(1)(ll) and 216.221, Florida Statutes (1989). The order was appealed to the Third District Court of Appeal which, without deciding the merits, certified the issue to this Court as a matter of great public importance requiring immediate resolution. 1 Chiles v. Children A, B, C, D, E, and F, No. 91-2530 (Fla. 3d DCA Oct. 21, 1991).

Appellees, six of Florida's foster children (hereinafter "children"), sought declaratory and injunctive relief against the State's Governor, Secretary of State, Attorney General, Comptroller, Treasurer, Commissioner of Agriculture, Commissioner of Education, and all as members of the Administration Commission (hereinafter "Commission"). 2 The trial court granted the children's request and held sections 216.011(1)(ll) and 216.221, Florida Statutes (1989), unconstitutional and enjoined the Commission from attempting to restructure the 1991 Appropriations Act pursuant to the budget reduction procedure established in chapter 216.

The state action that precipitated this case was the Governor's determination of an estimated $621.7 million general revenue shortfall in the fiscal 1991-92 state budget. In September 1991, the Governor directed all "state agencies," which by legislative definition in section 216.011(1)(ll), Florida Statutes (1989), includes the judicial branch, to prepare revised financial plans that would reduce their current operating budgets. On October 22, 1991, the Administration Commission 3 adopted the Governor's recommendations reducing the budgets established by the 1991 Appropriations Act, chapter 91-193, section 1, Laws of Florida.

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Initially, 4 the Commission challenges the appropriateness of the trial court order granting the children's request for declaratory relief. 5 The purpose of declaratory relief is "to afford relief from insecurity and uncertainty with respect to rights, status, and other equitable or legal relations" and thus the declaratory judgment statute is to be construed liberally. Sec. 86.101, Fla.Stat. (1989). This Court has held that to "entertain a declaratory action regarding a statute's validity, there must be a bona fide need for such a declaration based on present, ascertainable facts or the court lacks jurisdiction to render declaratory relief." Martinez v. Scanlan, 582 So.2d 1167, 1170 (Fla.1991). Additionally, this Court has upheld a grant of declaratory relief when the cause involved the public interest in the settlement of controversies in the operation of essential governmental functions and in the disbursement of public funds. See Overman v. State Bd. of Control, 62 So.2d 696 (Fla.1952). We find the children have demonstrated the existence of present ascertainable facts which were sufficient to permit the trial court to afford declaratory relief.

The central issue in this case is whether the legislature, in passing section 216.221, violated the doctrine of separation of powers by assigning to the executive branch the broad discretionary authority to reapportion the state budget. Section 216.221(2), Florida Statutes (1989), provides in relevant part:

If, in the opinion of the Governor, after consultation with the revenue estimating conference, a deficit will occur in the General Revenue Fund, he shall so certify to the commission. The commission may, by affirmative action, reduce all approved state agency budgets and releases by a sufficient amount to prevent a deficit in any fund.

(Emphasis added.)

The principles underlying the governmental separation of powers antedate our Florida Constitution and were collectively adopted by the union of states in our federal constitution. See Mistretta v. United States, 488 U.S. 361, 380, 109 S.Ct. 647, 658-59, 102 L.Ed.2d 714 (1989). The fundamental concern of keeping the individual branches separate is that the fusion of the powers of any two branches into the same department would ultimately result in the destruction of liberty. E.g., Ponder v. Graham, 4 Fla. 23, 42-43 (1851); see The Federalist No. 47 (James Madison), No. 51 (Alexander Hamilton or James Madison). As Montesquieu succinctly noted:

There would be an end of everything, were the same ... body ... to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.

Charles de Montesquieu, L'Esprit des Lois 70 (Robert M. Hutchins ed., William Benton 1952) (1748).

The separation of powers doctrine is expressly codified in the Florida Constitution in article II, section 3:

The powers 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

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the other branches unless expressly provided herein.

(Emphasis added.) The doctrine encompasses two fundamental prohibitions. The first is that no branch may encroach upon the powers of another. See, e.g., Pepper v. Pepper, 66 So.2d 280, 284 (Fla.1953). The second is that no branch may delegate to another branch its constitutionally assigned power. See, e.g., Smith v. State, 537 So.2d 982, 987 (Fla.1989). This case presents a separation of powers problem of the second type: a delegation of the legislative function.

Almost 300 years ago, in his Second Treatise of Government, John Locke explained the reasons for prohibiting such delegations of legislative authority:

The legislative cannot transfer the power of making laws to any other hands; for it being but a delegated power from the people, they who have it cannot pass it over to others. The people alone can appoint the form of the commonwealth, which is by constituting the legislative and appointing in whose hands that shall be. And when the people have said, we will submit to rules and be governed by laws made by such men, and in such forms, nobody else can say other men shall make laws for them; nor can the people be bound by any laws but such as are enacted by those whom they have chosen and authorized to make laws for them. The power of the legislative, being derived from the people by a positive voluntary grant and institution, can be no other than what that positive grant conveyed, which being only to make laws, and not to make legislators, the legislative can have no power to transfer their authority of making laws and place it in other hands.

John Locke, Two Treatises of Government 193 (Thomas I. Cook ed., Hafner Publishing Co. 1947) (emphasis added). 6 /p> This Court has repeatedly held that, under the doctrine of separation of powers, the legislature may not delegate the power to enact laws or to declare what the law shall be to any other branch. Any attempt by the legislature to abdicate its particular constitutional duty is void. Pursley v. City of Fort Myers, 87 Fla. 428, 432, 100 So. 366, 367 (1924); Bailey v. Van Pelt, 78 Fla. 337, 350, 82 So. 789, 793 (1919). As recently as 1978, in Askew v. Cross Key Waterways, 372 So.2d 913, 920-21 (Fla.1978), we reaffirmed that the legislature, under article II...

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