Department of Revenue v. Leadership Housing, Inc., 47440

• Decision Date: 22 October 1975
• Docket Number: No. 47440,47440
• Citation: 322 So.2d 7
• Parties: DEPARTMENT OF REVENUE of the State of Florida, Appellant, v. LEADERSHIP HOUSING, INC., and Leadership Communities, Inc., Appellees.
• Court: Florida Supreme Court

Page 7

322 So.2d 7

DEPARTMENT OF REVENUE of the State of Florida, Appellant, v. LEADERSHIP HOUSING, INC., and Leadership Communities, Inc., Appellees.

No. 47440.

Supreme Court of Florida.

Oct. 22, 1975.

On Reconsideration Nov. 24, 1975.

Robert L. Shevin, Atty. Gen., and Sydney H. McKenzie, III, Asst. Atty. Gen., for appellant.

Richard H. Hunt, Jr., Samuel C. Ullman, and Smathers & Thompson, Miami, for appellees.

ORDER

ENGLAND, Justice.

On July 29, 1975, appellees' counsel filed a suggestion for my disqualification in this proceeding. The bases for the suggestion are that, as special tax counsel to the Florida House of Representatives, I 'rendered and published (my) opinion on the precise question of substantive constitutional law which is in issue on this appeal, and supervised the drafting of corporate income tax statutory provisions consistent with said opinion, the constitutionality of which provisions are in issue herein.'

These grounds for my disqualification are identical with those suggested by appellee's counsel in Department of Revenue v. Golder, Case No. 47,057, Fla., 322 So.2d 1. Both proceedings involve constitutional questions which will receive consideration by the entire Court. Fla.App. Rule 3.10(g).

On October 15, 1975, I entered an Order declining to disqualify myself in that proceeding. A copy of that Order is attached.* For the reasons I set out in Golder, I decline to step aside in this proceeding.

ON RECONSIDERATION

For the reasons expressed in my opinion on reconsideration issued today in Department of Revenue v. Golder, Case No. 47,057, Fla., 322 So.2d 1. I disqualify myself in this case.

ON RECONSIDERATION

PER CURIAM.

On November 3, 1975 counsel for appellees filed a Motion to Reconsider addressed to an opinion-order in this proceeding dated October 22, in which Justice England declined to disqualify himself from participation. The twenty page motion contains, in the style of a brief, separate sections entitled Statement of Facts, Points Discussed, Argument: Point I, Argument: Point II, Argument: Point III, and Conclusion. It contains numerous citations of authority. The motion requests that Justice England reconsider his disqualification decision, and that the question also be considered by the full Court. While it has become unnecessary for us to comment on Justice England's disqualification in light of his personal decision in favor of disqualification, we deem it essential to comment on the procedural aspects of this issue in order to avoid for the future the type of problem which arose in this case.

Under the rules and precedents of this Court, the form of appellees' motion ordinarily would be considered improper. In practical effect, it challenges Justice England as to the correctness of his conclusions on the matters considered and passed upon in his order. This is not appropriate in a motion for reconsideration or for rehearing. The rule as to such requests was clearly and forecefully expressed in Texas Co. v. Davidson, 76 Fla. 475, 80 So. 558 (1919), where the Court, on application for rehearing, said at 80 So. at 559:

'We think it proper here to call the attention of the profession to the rules governing applications for rehearings.

The proper function of a petition for rehearing is to present to the court in clear concise terms some point that it overlooked or failed to consider; only this and nothing more. (citations) Upon an application for rehearing of a cause decided by this court, it is irregular, and an infraction of the rule, to accompany the petition with a written argument and citation of authorities. (citations)

An application for rehearing that is practically a joinder of issue with the court as to the correctness of its conclusions upon points involved in its decision that were expressly considered and passed upon, and that reargues the cause in advance of a permit from the court for such...