Advisory Opinion of Governor Civil Rights, In re

• Decision Date: 06 January 1975
• Docket Number: No. 45808,45808
• Citation: 306 So.2d 520
• Parties: In re ADVISORY OPINION OF the GOVERNOR CIVIL RIGHTS.
• Court: Florida Supreme Court

Page 520

306 So.2d 520

In re ADVISORY OPINION OF the GOVERNOR CIVIL RIGHTS.

No. 45808.

Supreme Court of Florida.

Jan. 6, 1975.

Robert L. Shevin, Atty. Gen., Baya M. Harrison III, Asst. Atty. Gen., and Kenneth M. Myers, Miami, for intervenors.

January 6, 1975

Honorable Reubin O'D. Askew

Governor, State of Florida Tallahassee, Florida 32304

Dear Governor Askew:

We have the honor to acknowledge your communication of June 28, 1974, requiesting our advice pursuant to Section 1(c), Article IV, Constitution of Florida, relating to certain executive powers and duties.

Omitting the formal parts, your letter reads as follows:

'By virtue of the provisions of Section 1(c), Article IV, Florida Constitution, 1968 Revision, and Rule 2.1(h), Florida Appellate Rules, I have the honor to request your written opinion as to the interpretation of a portion of the Florida Constitution affecting my executive powers and duties.

'The Legislature has recently passed an act entitled the Florida Correctional Reform Act of 1974, with an effective date of July 1, 1974. The act was signed into law on May 31, 1974. Section 28 of the Florida Correctional Reform Act creates Section 944.292 of the Florida Statutes to read as follows:

'Suspension of civil rights. Effective July 1, 1974, upon conviction for a felony, the civil rights of the person convicted shall be suspended until he is discharged from parole or released from the custody of the department of health and rehabilitative services without parole, at which time such civil rights are automatically reinstated.

The only civil rights which shall be suspended by conviction are the right to vote, hold public office and serve on a jury.'

'Article IV, Section 8 of the Florida Constitution relating to executive clemency provides that:

'Except in cases of treason and in cases where impeachment results in conviction, the governor may, by executive order filed with the secretary of state, suspend collection of fines and forfeitures, grant reprieves not exceeding sixty days and, with the approval of three members of the cabinet, grant full or conditional pardons, restore civil rights, commute punishment, and remit fines and forfeitures for offenses.'

'Article VI, Section 4 of the Florida Constitution provides that:

'No person convicted of a felony, or adjudicated in this or any other state to be mentally incompetent, shall be qualified to vote or hold office until resporation of civil rights or removal of disability.'

'The basic concept presented as a part of the Florida Correctional Reform Act provides for suspension and automatic reinstatement of civil rights. However, the Florida Constitution provides that the Governor may, with the approval of three members of the Cabinet, restore civil rights. While I approved this legislation by signing it into law, it is possible that this legislation providing for suspension of civil rights may infringe upon the constitutional duties of the Governor and Cabinet. In view of this possible conflict between the provision of the Florida Correctional Reform Act and the above described provisions of the Florida Constitution, I am in doubt concerning my constitutional duties and responsibility in regard to executive clemency. I have the honor, therefore, to request your written opinion on the following questions:

'1. Does the provision of the Florida Correctional Reform Act present an infringement upon the constitutional power of the Governor and Cabinent to restore civil rights?

'2. The Florida Correctional Reform Act provides that 'the only civil rights which shall be suspended by conviction are the rights to vote, hold office and serve on a jury.' If valid, what is the effect of the Florida Correctional Reform Act upon legislation which has been enacted dealing with civil rights including the following Florida statutes: 112.011 (employment); 790.23(1) (firearms); 40.07(1) (jury); 775.13 (registration of convicted felons); 97.041(5)(d) (voting); and 561.15 (beverage license); and what are my duties in terms of the constitutional process of restoration of rights in regard to these statutes?

'I recognize that this Court is reluctant to pass on the constitutionality of an act of the Legislature in an advisory opinion. However, in this instance, such a determination is vital not only to the executive powers and duties of the Governor, but to those individuals whose restoration of rights is in question. It would be very difficult for these questions to reach a judicial forum through any method other than an advisory opinion.'

Upon receipt of your request for advisory opinion relative to your executive powers and duties, that Court entered an interlocutory order finding that the questions propounded were answerable and requesting that briefs be filed by interested parties.

We respond to the first question in the affirmative and find that the questioned portion of the Florida Correctional Reform Act does constitute a clear infringement upon the constitutional power of the Governor to restore civil rights. Conviction of a felony removes many civil rights of a person. Article VI, Section 4, Florida Constitution (1968), provides:

'No person convicted of a felony, or adjudicated in this or any other state to be mentally incompetent, shall be qualified to vote or hold office until Restoration of civil rights or removal of disability.' (e.s.)

Article IV, Section 8(a), pertaining to executive clemency, pardons and restoration of civil rights, provides:

'Except in cases of treason and in cases where impeachment results in conviction, the governor may, by executive order filed with the secretary of state, suspend collection of fines and forfeitures, grant reprieves not exceeding sixty days and, with the approval of three members of the cabinet, grant full or conditional pardons, Restore civil rights, commute punishment, and remit fines and forfeitures for offenses.' (e.s.)

The provision of Section 28, Chapter 74--112, Laws of Florida, questioned herein provides:

'Effective July 1, 1974, upon conviction for a felony, the civil rights of the person convicted shall be Suspended until he is discharged from parole or released from the custody of the department of health and rehabilitative services without parole, at which time such civil rights are automatically reinstated. The only civil rights which shall be Suspended by conviction are the right to vote, hold public office and serve on a jury.' (e.s.)

As early as 1896, this Court committed itself to the proposition that the power of pardon is reposed exclusively in the chief executive and with the approval of three members of his cabinet. In Singleton v. State, 38 Fla. 297, 21 So. 21 (Fla.1896), this Court struck down an act of the legislature purporting to restore civil rights to a convicted felon for the reason that the power to commute punishment and grant pardons for crimes after conviction had been conferred upon the governor and cabinet '. . . and it is not competent for the legislature to exercise such power.' Therein, this Court succinctly explicated:

'Article 2 of the constitution divides the powers of government into three departments,--legislative, executive, and judicial,--and provides that no person properly belonging to one of the departments shall exercise any powers appertaining to either of the others, except in cases expressly provided for by the constitution. In the distribution of the powers of government the framers of our constitution had the right to lodge the pardoning power where they saw proper in the departments of government. We know, from judicial history, that the pardoning power was a part of the royal prerogative in England; and Chief Justice Marshall, in speaking for the court, in U.S. v. Wilson, 7 Pet. 150, (8 L.Ed. 640) says: 'As this power has been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance, we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it.' As to the exercise of the power under our system of government, we must look to our organic law, The constitution. By the eleventh section of article 4 the governor alone is given power to suspend the collection of fines and forfeitures, and grant reprieves, for a period not exceeding 60 days, for all offenses, except in cases of impeachment, and in cases of conviction for treason the legislature can pardon on the suspension of the sentence by the governor. The twelfth section of the article, as amended, confers power upon the governor, secretary of state, comptroller, commissioner of agriculture, and attorney general to permanently remit fines and forfeitures, commute punishment, and grant pardons after conviction, in all cases except treason and impeachment, subject to...