Department of Educ. v. Lewis, 61241

• Decision Date: 15 July 1982
• Docket Number: No. 61241,61241
• Citation: 416 So.2d 455
• Parties: 5 Ed. Law Rep. 681 DEPARTMENT OF EDUCATION, State Board of Education, Ralph D. Turlington, as Commissioner of Education and as citizen and taxpayer, and Talbot D'Alemberte, a citizen and taxpayer, Appellants, v. Gerald A. LEWIS, Comptroller, and George Firestone, Secretary of State, Appellees.
• Court: Florida Supreme Court

Page 455

416 So.2d 455

5 Ed. Law Rep. 681

DEPARTMENT OF EDUCATION, State Board of Education, Ralph D. Turlington, as Commissioner of Education and as citizen and taxpayer, and Talbot D'Alemberte, a citizen and taxpayer, Appellants, v. Gerald A. LEWIS, Comptroller, and George Firestone, Secretary of State, Appellees.

No. 61241.

Supreme Court of Florida.

July 15, 1982.

James D. Little, Gen. Counsel, and Judith A. Brechner, Deputy Gen. Counsel, State Bd. of Educ., and Chesterfield Smith and John Radey of Holland & Knight, Tallahassee, for Dept. of Educ., State Bd. of Educ. and Ralph D. Turlington.

Talbot D'Alemberte and Thomas R. Julin of Steel, Hector & Davis, Miami, for Talbot D'Alemberte.

Michael J. Coniglio, Deputy Comptroller and Michael Basile, Gen. Counsel, Office of the Comptroller, Tallahassee, for Gerald A. Lewis.

Jim Smith, Atty. Gen., and Mitchell D. Franks and Thomas R. Tedcastle, Asst. Attys. Gen., Tallahassee, for George Firestone.

Steven G. Wenzel, Vice President for Employee Relations and Legal Affairs, Tampa, and W. Reece Smith, Jr., Sylvia H. Walbolt and Mark A. Brown of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for John Lott Brown, President of the University of South Florida and Daniel R. Walbolt, as Vice President of Student Affairs of the University of South Florida, amicus curiae.

BOYD, Justice.

This case is here on the certification of the District Court of Appeal, First District, that the trial court judgment appealed to that court is of great public importance and requires immediate resolution by the Supreme Court. We have jurisdiction under article V, section 3(b)(5), Florida Constitution.

House Bill No. 30-B was the general appropriations bill adopted by the 1981 Legislature and became law as chapter 81-206, Laws of Florida. The appropriations for the Department of Education and the Commissioner of Education were prefaced by the following proviso:

No funds appropriated herein shall be used to finance any state-supported public or private postsecondary educational institution that charters or gives official recognition or knowingly gives assistance to or provides meeting facilities for any group or organization that recommends or advocates sexual relations between persons not married to each other.

Sexual relations means contact with sexual organs of one person by the body of another person for sexual gratification.

Any postsecondary educational institution found in violation of this provision shall have all state funds withheld until that institution is again in compliance with the law.

No state financial aid shall be given to students enrolled at any postsecondary educational institution located in Florida which is in violation of this provision.

Ch. 81-206, § 1, Laws of Fla.

The Florida Department of Education, the State Board of Education, and Commissioner of Education Ralph D. Turlington filed a complaint seeking a declaratory judgment that the above-quoted proviso is unconstitutional and void. Named as defendants were Comptroller Gerald Lewis and Secretary of State George Firestone. The complainants challenged the constitutionality of the proviso under article III, section 12 of the Florida Constitution as well as under freedom of expression principles embodied in the Florida and United States Constitutions.

Talbot D'Alemberte, a trustee of Miami-Dade Community College, filed a motion to intervene as a party plaintiff. The trial court granted the motion based on D'Alemberte's status as a citizen and taxpayer. The defendants in their answers to the complaint questioned the standing of the Department of Education, the State Board of Education, and Turlington in his official capacity as Commissioner of Education, to bring the suit. After declining to dismiss these plaintiffs, the trial court granted judgment for the defendants and upheld the proviso against all contentions of invalidity.

Before reaching the merits of the case, we must resolve the question of standing to sue.

In the court below, the appellees challenged the appellants' standing to seek a determination that the proviso is unconstitutional. While we find the individual appellants to have such standing as ordinary citizens and taxpayers, they have no standing in their official capacities. State officers and agencies must presume legislation affecting their duties to be valid, and do not have standing to initiate litigation for the purpose of determining otherwise. Barr v. Watts, 70 So.2d 347 (Fla.1953); City of Pensacola v. King, 47 So.2d 317 (Fla.1950); State ex rel. Watson v. Kirkman, 158 Fla. 11, 27 So.2d 610 (1946); State ex rel. Atlantic Coast Line R.R. v. State Board of Equalizers, 84 Fla. 592, 94 So. 681 (1922). In such a situation, the public officer or agency does not have a sufficiently substantial interest or special injury to allow the court to hear the challenge.

If, on the other hand, the operation of a statute is brought into issue in litigation brought by another against a state agency or officer, the agency or officer may defensively raise the question of the law's constitutionality. City of Pensacola v. King, 47 So.2d 317 (Fla.1950); State ex rel. Harrell v. Cone, 130 Fla. 158, 177 So. 854 (1937); State ex rel. Florida Portland Cement Co. v. Hale, 129 Fla. 588, 176 So. 577 (1937). The comptroller is one officer that has been allowed by Florida courts to initiate litigation in his official capacity seeking to establish the unconstitutionality of a statute. See Dickinson v. Stone, 251 So.2d 268 (Fla.1971); Green v. City of Pensacola, 108 So.2d 897 (Fla. 1st DCA 1959), aff'd, 126 So.2d 566 (Fla.1961). It has also been recognized that the attorney general may, in limited circumstances, initiate litigation to challenge the constitutionality of legislation. See Department of Administration v. Horne, 269 So.2d 659 (Fla.1972); State ex rel. Landis v. S. H. Kress & Co., 115 Fla. 189, 155 So. 823 (1934); State ex rel. Moodie v. Bryan, 50 Fla. 293, 39 So. 929 (1905). The comptroller, as the state's chief officer for disbursement of funds, would have standing to challenge a proviso in an appropriations bill. But the Department of Education, the State Board of Education, and the Commissioner of Education in his official capacity, do not.

As ordinary citizens and taxpayers, however, appellants Turlington and D'Alemberte have standing to challenge the constitutionality of the proviso. In making their challenge, the appellants invoke two constitutional prohibitions: article III, section 12, Florida Constitution, governing appropriations acts; and the state and federal constitutional prohibition against state action abridging the freedoms of speech and association. Both challenges relate to the power of the legislature to tax and spend for the general welfare of the state as embodied in the appropriations bill. The proviso is challenged as an abuse of appropriations process and as an invalid directive to the postsecondary school administrators of the state concerning the spending of state funds. Therefore, appellants as taxpayers have standing to challenge the constitutionality of the proviso. Brown v. Firestone, 382 So.2d 654 (Fla.1980); Department of Administration v. Horne, 269 So.2d 659 (Fla.1972); Rickman v. Whitehurst, 73 Fla. 152, 74 So. 205 (1917). Cf. Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968) (federal taxpayers had standing to challenge statute alleged to exceed specific constitutional limits on the taxing and spending power).

With both the appropriations act restriction issue and the freedom of expression issue properly presented by proper parties, we now turn to the merits.

Article III, section 12, Florida Constitution, provides:

Laws making appropriations for salaries of public officers and other current expenses of the state shall contain provisions on no other subject.

This provision is a corollary of article III, section 6, which requires that all laws be limited to a single subject and matters properly related to that subject. Brown v. Firestone, 382 So.2d 654 (Fla.1980). An extensive body of constitutional law teaches that the purpose of article III, section 6 is to ensure that every proposed enactment is considered with deliberation and on its own merits. A lawmaker must not be placed in the position of having to accept a repugnant provision in order to achieve adoption of a desired one. See, e.g., Santos v. State, 380 So.2d 1284 (Fla.1980); State v. Lee, 356 So.2d 276 (Fla.1978); King Kole, Inc. v. Bryant, 178 So.2d 2 (Fla.1965); Lee v. Bigby Electric Co., 136 Fla. 305, 186 So. 505 (1939); State ex rel. Grodin v. Barns, 119 Fla. 405, 161 So. 568 (1935); Ex parte Sarros, 116 Fla. 86, 156 So. 396 (1934); McConville v. Ft. Pierce Bank & Trust Co., 101 Fla. 727, 135 So. 392 (1931); Colonial Investment Co. v. Nolan, 100 Fla. 1349, 131 So. 178 (1930); State ex rel. Crump v. Sullivan, 99 Fla. 1070, 128 So. 478 (1930).

Through a number of cases decided over many years this Court has attempted to make clear to the Legislature that under our constitutional plan for the lawful exercise of governmental powers an appropriations act is not the proper place for the enactment of general public policies on matters other than appropriations. Brown v. Firestone, 382 So.2d 654 (Fla.1980); Thomas v. Askew, 270 So.2d 707 (Fla.1972); Department of Administration v. Horne, 269 So.2d 659 (Fla.1972); Dickinson v. Stone, 251 So.2d 268 (Fla.1971); In re Advisory Opinion to the Governor, 239 So.2d 1 (Fla.1970); Green v. Rawls, 122 So.2d 10 (Fla.1960); Lee v. Dowda, 155 Fla. 68, 19 So.2d 570 (1944); Amos v. Moseley, 74 Fla. 555, 77 So. 619 (1918). In Brown v. Firestone, the Court said The enactment of laws providing for general appropriations involves different considerations and indeed different procedures than does the enactment of laws on other subjects. Our state constitution demands that each bill dealing with substantive matters be scrutinized separately...