622 So.2d 944 (Fla. 1993), 80286, Florida Dept. of Educ. v. Glasser

Docket Nº:80286.
Citation:622 So.2d 944, 18 Fla. L. Weekly S 301
Opinion Judge:Author: Shaw
Party Name:FLORIDA DEPARTMENT OF EDUCATION, Appellant, v. Kay E. GLASSER, et al., Appellees.
Attorney:Robert A. Butterworth, Attorney General and Joseph C. Mellichamp, III, Senior Assistant Attorney General, Department of Legal Affairs, Tallahassee, Florida; Sydney H. McKenzie, III, General Counsel and Barbara J. Staros, Deputy General Counsel, Department of Education, Tallahassee, Florida; and T...
Case Date:May 20, 1993
Court:Supreme Court of Florida

Page 944

622 So.2d 944 (Fla. 1993)

18 Fla. L. Weekly S 301



Kay E. GLASSER, et al., Appellees.

No. 80286.

Supreme Court of Florida.

May 20, 1993

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[Copyrighted Material Omitted]

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Robert A. Butterworth, Atty. Gen. and Joseph C. Mellichamp, III, Sr. Asst. Atty. Gen., Dept. of Legal Affairs, Sydney H. McKenzie, III, General Counsel and Barbara J. Staros, Deputy General Counsel, Dept. of Educ., and Talbot D'Alemberte of Steel, Hector and Davis, Tallahassee, for appellant.

A. Lamar Matthews, Jr., Jeanne S. Medawar and Arthur S. Hardy of Matthews, Hutton & Eastmoore, Sarasota, for appellees.

Robert L. Nabors, Sarah M. Bleakley and Thomas H. Duffy of Nabors, Giblin & Nickerson, P.A., Tallahassee, amicus curaie for Dade, Hernando and Orange Counties.

SHAW, Justice.

We have for review State, Department of Education v. Glasser, 622 So.2d 1003 (Fla.2d DCA 1992), in which the district court affirmed the trial court's declaratory judgment that section 236.25(1), Florida Statutes (1989), 1 and chapter 91-193, Sec. 1, item 509, Laws of Florida, are unconstitutional. We have jurisdiction. Art. V, Sec. 3(b)(1), Fla. Const.

Appellees, individually and as members of the School Board of Sarasota County (school board) filed an action for declaratory judgment against the Sarasota County tax collector. The trial court, in addition to declaring the above-referenced sections unconstitutional, directed the tax collector to collect and remit to the school board taxes assessed against the nonvoted discretionary millage as set by the school board. The issue presented here is whether a school district has constitutional authority to levy such taxes in the absence of enabling legislation. We answer this query in the negative for the reasons hereinafter expressed.

Statutes are presumed to be constitutional and courts must construe them in harmony with the constitution if it is reasonable to do so. Holley v. Adams, 238 So.2d 401, 404 (Fla.1970). We find that in this instance the constitution and relevant statutes can coact. Our analysis begins with the Florida Constitution. Article VII, in relevant part, provides:

Section 9. Local taxes.--

(a) Counties, school districts, and municipalities shall, and special districts may, be authorized by law to levy ad valorem taxes ... for their respective purposes....

(b) Ad valorem taxes, exclusive of taxes levied for the payment of bonds and taxes levied for periods not longer than two years when authorized by vote of electors who are the owners of freeholds therein not wholly exempt from taxation, shall not be levied in excess of the following millages[:] ... for all school purposes, ten mills....

(Emphasis added.)

We attribute to the words "shall ... be authorized by law" their plain meaning:

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legislative authorization is required to trigger this provision; it is not self-executing. See 1 The Oxford English Dictionary 798-99 (2d ed. 1989) (authorize: "To give legal force to; to make legally valid. To endow with authority"). Had the framers of the 1968 Florida Constitution intended a self-executing grant of power, they could have chosen self-executing language. Our present constitution contains numerous examples of such phrases: "The seat of government shall be the City of Tallahassee, in Leon County...." Art. II, Sec. 2, Fla. Const. "The supreme executive power shall be vested in a governor." Art. IV, Sec. 1(a), Fla. Const. "The judicial power shall be vested in a supreme court, district courts of appeal, circuit courts and county courts." Art. V, Sec. 1, Fla. Const. Had the framers intended to authorize school districts to levy ad valorem taxes, they could have said simply: "School districts are authorized to levy ad valorem taxes."

Our conclusion that the constitutional provision at issue requires legislative enactment is strengthened by the commentary to the 1968 constitutional revision: "The language [of section 9(a) ], mandatory in tone, does contemplate a legislative act for they 'shall be authorized by law' to levy ad valorem taxes." 26A Fla.Stat.Ann. 143 (1970) (commentary by Talbot "Sandy" D'Alemberte). The school board nevertheless argues that the word "shall" gives the school district full authorization to levy taxes without the necessity of an enactment. This argument fails to give meaning to the accompanying words "be authorized by law," and for this reason is rejected.

Article IX, section 4(b) of the Florida Constitution provides:

The school board shall ... determine the rate of school district taxes within the limits prescribed herein.

The school board urges and the district court concluded that "within the limits prescribed herein" refers only to the ten-mill cap set out in article VII, section 9(b). We disagree. Such a restrictive reading of article IX again fails to give meaning to the words "be authorized by law" contained in subsection 9(a) of article VII and effectively reads them out of the constitution.

Counsel for the school board, at oral argument, introduced the position that if enabling legislation is required to empower school districts to levy ad valorem taxes, then section 236.25, Florida Statutes (1989), provides the necessary legislation. This is the very legislation declared unconstitutional by the district court at the urging of the school board. It makes no sense to regard this section as, at the same time, both enabling and unconstitutional. More importantly, nothing in section 236.25 authorizes the school board to levy taxes other than those specified by the Legislature.

The school board invites us to define "a uniform system of free public schools," 2 arguing that St. Johns County v. Northeast Florida Builders Association, Inc., 583 So.2d 635, 641 (Fla.1991), interprets the constitution as merely requiring a "floor" of educational opportunity and thus the counties are empowered to put into place their own "ceilings." We decline the invitation and leave it to the Legislature, in the first instance, to give content to this constitutional mandate. We may be required in some future case to determine whether the Legislature has provided "a uniform system," but we are not required to do so in the instant case, nor were we required to do so in St. Johns.

The trial court additionally determined that the legislation at issue violates article III, sections 6 and 12 3 of the Florida

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Constitution. 4 We briefly address these issues. Section 236.25 was amended by chapter 88-557, section 19, Laws of Florida to provide in relevant part that: "The Legislature shall prescribe annually in the appropriations act the maximum amount of millage a district may levy." An examination of chapter 88-557 convinces us that it presents no article III, section 6 or 12 violation. Chapter 88-557 is not an appropriations act, though it refers to the general appropriations act and conforms certain statutes to that act. Nor does chapter 88-557 amend section 236.25 by reference to its title only but, quite the opposite and in full compliance with section 6, it amends by setting out in full the section amended and the amending language.

We furthermore reject the argument that item 509 of the 1991 appropriations act violated article III, section 6. Since item 509 neither revised nor amended section 236.25, the prohibition against amendment by reference to title only is inapplicable.

We also reject the argument that item 509 violates section 12 of the constitution. This Court, in Brown v. Firestone, 382 So.2d 654, 663-64 (Fla.1980), determined that although an appropriations bill must not change or amend existing law on subjects other than appropriations, this does not foreclose a general appropriations bill from making allocations of state funds for a previously authorized purpose in amounts different from those previously allocated. We read item 509 as doing nothing more than allocating funds for a previously authorized purpose in an amount different from that previously allocated. This we have held not to be a violation of section 12 of the Florida Constitution. We further observed in Brown that a qualification or restriction in an appropriations act will pass constitutional muster if it directly and rationally relates to the purpose of the appropriation. Id. at 664. It is clear, applying these principles to the instant case, that the challenged language 5 is directly and rationally related to the overall purpose of the act.

We at last address the procedural aspects of this case. The school board filed its action for declaratory judgment against the tax collector of Sarasota County, without naming as a party the Department of Education or any other state agency. The board and tax collector stipulated to an expedited hearing to be held the next day, and at the same time notified the Attorney General of the next-day hearing by electronic facsimile transmission. The Attorney General's motion for dismissal, based on the board's failure to name the real party in interest, and his motion for postponement were denied. We hold that the Department of Education should have been named as a party to the trial court proceedings. "Trial by surprise" in cases of statewide importance is bad public policy and will not be condoned. We have said that before any proceeding for declaratory relief is entertained all persons who have an "actual, present, adverse, and...

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