B.H. v. State, No. 82361

• Court: United States State Supreme Court of Florida
• Writing for the Court: PER CURIAM; GRIMES, C.J., and WELLS; McDONALD, Senior Justice, concurs in result only with an opinion, in which OVERTON; KOGAN, J., concurs in part and dissents in part with an opinion, in which SHAW; HARDING; McDONALD; OVERTON; KOGAN; SHAW; HARDING
• Citation: 645 So.2d 987
• Parties: 19 Fla. L. Weekly S610 B.H., a child, Petitioner, v. STATE of Florida, Respondent.
• Docket Number: No. 82361
• Decision Date: 23 November 1994

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645 So.2d 987 19 Fla. L. Weekly S610 B.H., a child, Petitioner,
v.
STATE of Florida, Respondent. No. 82361. Supreme Court of Florida. Nov. 23, 1994.

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James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for petitioner.

Robert A. Butterworth, Atty. Gen., and Myra J. Fried, Asst. Atty. Gen., Daytona Beach, for respondent.

PER CURIAM.

We have for review the decision in B.H. v. State, 622 So.2d 615 (Fla. 5th DCA 1993), which expressly and directly conflicts with the opinion in D.P. v. State, 597 So.2d 952 (Fla. 1st DCA 1992). We have jurisdiction. Art. V, Sec. 3(b)(3), Fla. Const.

Petitioner B.H., a child, was charged with escape from a juvenile commitment facility in violation of section 39.061, Florida Statutes (Supp.1990). ¹ B.H. pled nolo contendere, reserving the right to appeal the constitutionality of the statute. Subsequently, B.H. was adjudicated delinquent and committed to the Department of Health and Rehabilitative Services. On appeal to the Fifth District, B.H.'s adjudication of delinquency was affirmed. B.H.

Section 39.061, Florida Statutes (Supp.1990), provides in pertinent part:

An escape from any secure detention facility or any residential commitment facility of restrictiveness level VI or above ... constitutes escape within the intent and meaning of s. 944.40 and is a felony of the third degree.

The statute further states:

"Restrictiveness level" means the identification of broad custody categories for committed children, including nonresidential, residential, and secure residential. Specific placement in restrictiveness levels within these categories depends upon the risk and needs of the individual child. Restrictiveness levels must be established by [HRS]

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by rule, provided however that there shall be no more than eight levels.

Sec. 39.01(61), Fla.Stat. (Supp.1990). In D.P., the First District concluded that these provisions improperly delegate legislative authority to HRS, in effect, to determine what the crime of juvenile escape actually is. The D.P. court reasoned that, under the statute as it then existed, HRS and not the legislature defined each of the various restrictiveness levels. We accepted jurisdiction to resolve the conflict.

I. Nondelegation

The present case squarely presents an issue that has vexed courts and legal scholars for some time now: How much of a role may administrative agencies take in defining the elements of a crime? We note that the federal courts frequently have addressed this question, but with strikingly inconsistent results.

In 1897, the United States Supreme Court for the first time approved of an agency taking an extremely limited role in defining a crime consisting of selling oleomargarine in containers not properly marked in a manner designated by the Commissioner of Internal Revenue. The Court approved the statute on grounds that the Commissioner's involvement--designating an official mark--was negligible and therefore Congress had not improperly delegated its lawmaking authority to the executive branch. Edmund H. Schwenk, The Administrative Crime, Its Creation and Punishment by Administrative Agencies, 42 Mich.L.Rev. 51, 56-57 (1943) (citing In re Kollack, 165 U.S. 526, 17 S.Ct. 444, 41 L.Ed. 813 (1897)).

In 1910, the United States Supreme Court went a step further and approved a statute criminalizing the act of grazing sheep on certain public lands without obtaining permission in a manner prescribed by the Secretary of Agriculture. The Court again upheld the statute on grounds that no lawmaking authority had been delegated to the executive agency. United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563 (1911); accord Light v. United States, 220 U.S. 523, 31 S.Ct. 485, 55 L.Ed. 570 (1911).

The limits of the Court's evolving doctrine were drawn, at least temporarily, in two cases that are much studied in law schools and that students often call the "Hot Oil" and "Sick Chicken" cases. Harlan S. Abrahams, et al., Separation of Powers & Administrative Crimes: A Study of Irreconcilables, 1976 So.Ill.L.J. 1, 47-49 (citing Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935); A.L.A. Schecter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935)). In these cases, the United States Supreme Court invalidated statutes that had delegated authority to the President to issue administrative rules on oil and poultry production that defined elements of certain crimes. Id. & id. at 47 n. 172. The historical context of these opinions is important in understanding what ultimately became of them.

The two cases arose at a time when the administration of President Franklin D. Roosevelt was grappling with the enormous problems of the Great Depression, which was widely viewed as a serious threat to American democracy. Congress's response was the wholesale creation of what we now consider to be modern federal administrative law. Mark D. Alexander, Increased Judicial Scrutiny for the Administrative Crime, 77 Cornell L.Rev. 612, 621 (1992). The Supreme Court, however, began striking a number of these statutes in a variety of cases, among them being Panama Refining and Schecter Poultry, both decided in 1935. President Roosevelt responded with his famous threat to greatly expand the number of Supreme Court associate justices so that he then could "pack the Court" and gain judicial acceptance of his New Deal reforms.

Although Congress failed to expand the Court as Roosevelt wanted, the threat nonetheless succeeded in a manner: The Court suddenly began approving New Deal legislation either expressly or by refusing to hear cases upholding the new laws. By the outbreak of the Second World War, the Court typically refused to interfere with administrative schemes created by Congress and enforced by executive agencies, even when they involved administrative involvement far more sweeping than those struck in 1935.

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Nevertheless, Panama Refining and Schecter Poultry have never been overruled; and the Court occasionally has hinted that they may not entirely be dead letters. Abrahams, supra, at 49 (citing Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958)).

The federal courts' stance in this regard has been sternly criticized. The most comprehensive study of the subject, Abrahams, supra, has argued that the far-ranging administrative powers tolerated in the federal system are contrary to the fundamental philosophy underlying American democracy. Abrahams notes that the European political philosophers widely viewed as forebears of the federal Constitution strongly decried the accumulation of powers in a single person or organ of government.

John Locke's Second Treatise, for example, contends there can be no justice or liberty if legislative and executive powers are unified. Abrahams, supra, at 19 & 19 n. 60 (citing P. Laslett, John Locke's Two Treatises of Government: A Critical Edition with an Introduction & an Apparatus Criticus (1960)). Likewise, Montesquieu's Spirit of the Laws argues that genuine liberty is dependent on the rule of law, which in turn is dependent on a true separation of powers enforced by a system of checks and balances. Id. (citing Montesquieu, Spirit of the Laws (Newmann ed. 1949)).

At the very least, the present-day federal conception of administrative involvement in defining crimes remains rife with unresolved tensions. If the United States Supreme Court tolerates powers of wide-ranging character, that toleration clearly emerged out of two major national crises--the Great Depression and the Second World War--that do not necessarily dictate the same result at the state level. Moreover, the failure to overrule Panama Refining and Schecter Poultry suggests that the remaining questions of federal law may someday be reopened. At least two justices sitting on the present Court have indicated exactly that. See Mistretta v. United States, 488 U.S. 361, 413, 109 S.Ct. 647, 676, 102 L.Ed.2d 714 (1989) (Scalia, J., dissenting); American Textile Mfrs. Inst., Inc., v. Donovan, 452 U.S. 490, 543, 101 S.Ct. 2478, 2507-08, 69 L.Ed.2d 185 (1981) (Rehnquist, J., dissenting); Industrial Union Dep't, AFL-CIO, v. American Petroleum Inst., 448 U.S. 607, 671, 100 S.Ct. 2844, 2878-79, 65 L.Ed.2d 1010 (1980) (Rehnquist, J., concurring in the judgment).

We now turn to Florida law on the same question. Any discussion must begin by noting several special features of the state Constitution, which we are required to honor under the doctrine of primacy notwithstanding less stringent federal law. Traylor v. State, 596 So.2d 957 (Fla.1992). In Florida, the state is entirely a creation of the people, in whom all political powers still inhere--including the ability to create or modify a state Constitution. ² Compare art. I, Sec. 1, Fla. Const. with art. XI, Fla. Const. Pursuant to their inherent powers, the people of Florida have established a tripartite separation of powers precisely like that envisioned by Locke and Montesquieu:

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 the other branches unless expressly provided herein.

Art. II, Sec. 3, Fla. Const. (emphasis added).

The prohibition contained in the second sentence of Article II, section 3 of the Florida Constitution could not be plainer, as our cases clearly have held. This Court has stated repeatedly and without exception that Florida's Constitution absolutely requires a "strict" separation of powers. Cases on this point are numerous, but an examination of a leading decision will suffice. In Askew v. Cross Key Waterways, 372 So.2d 913, 924 (Fla.1978), we stated:

Article II, Section 3, Florida Constitution, contrary to the Constitution[ ] of the United States ... does by its second sentence

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contain an express...