Florida Dept. of Offender Rehabilitation v. Jerry

Decision Date10 January 1978
Docket NumberNo. FF-303,FF-303
Citation353 So.2d 1230
PartiesThe FLORIDA DEPARTMENT OF OFFENDER REHABILITATION, Petitioner, v. Leroy JERRY and the Florida Division of Administrative Hearings, Respondents.
CourtFlorida District Court of Appeals

Earl H. Archer, III, Tallahassee, for petitioner.

John T. Chandler, Gainesville, for respondents.

ERVIN, Judge.

Leroy Jerry, an inmate in the state correctional institution, was charged by the Department of Offender Rehabilitation (DOR) with unarmed assault in violation of Florida Administrative Code Rule 33-3.08(2). 1 He was found guilty, placed in disciplinary confinement and served his penalty. He then attacked the above Rule in a Section 120.56, 2 Florida Statutes (Supp.1976), proceeding. Rule 33-3.08 sets forth the procedure by which an inmate is subjected to disciplinary confinement and forfeiture of gain-time. Authority for the Rule is derived from Section 944.28, Florida Statutes (1975), which allows forfeiture of all or part of gain-time earned by a prisoner should he be guilty of certain specified acts, including assault. 3

Jerry's petition for an administrative determination that Rule 33-3.08(2) was invalid alleged he was a person substantially affected since he had been charged with an infraction of the Rule, assault, and as a result his substantial interests in retaining accrued gain-time and freedom from disciplinary confinement were at issue. He also alleged he was substantially affected because the maximum penalty to which he could be exposed was disciplinary confinement for 60 days and 180 days loss of gain-time. The hearing examiner found Rule 33-3.08(2) invalid for failure to meet the procedural guidelines set forth in Section 120.57, Florida Statutes (Supp.1976). He concluded that since Section 120.72(1), Florida Statutes (Supp.1976), makes uniform the rulemaking and adjudicative procedures used by the administrative agencies of the state, there was no exemption to DOR from the requirements of the new APA as found in Chapter 120. 4 Consequently, the Department is an agency as defined by Section 120.52(1)(b). By juxtaposing certain provisions of the Rule with Section 120.57, 5 he found the Rule conflicted with pertinent portions of the statute and could not stand.

The hearing officer's order involves matters of great substance; nevertheless, for the reasons stated infra, it is not necessary for us to address the primary question raised as to the validity of the Rule since Jerry has not met the threshold requirement of standing.

Our efforts to determine what occurred at the hearing before the disciplinary team are thwarted because there is no record of those proceedings. It was not established Jerry ever made a request for a Section 120.57 hearing during the disciplinary proceedings. We do know however that at the time of the hearing before the administrative examiner, Jerry had completely served his disciplinary confinement. But we do not know whether Jerry suffered any loss of gain-time. The only inescapable conclusion which can be reached from the administrative proceedings is that the hearing examiner found Jerry has standing because he is a member of the prison class, has been subjected to alleged invalid procedures in the past and may possibly in the future be subjected to such procedures. Observe the following from the hearing officer's order:

"Respondent argues that Petitioner has no standing to seek an administrative determination of the validity of the Rule because he had already been found guilty of an infraction under the Rule and been subjected to discipline prior to the final hearing in this cause and thus it is not now affected by the Rule. The Hearing Officer specifically rejects this argument. The Rule applies to inmates in the correctional institutions of this state. Petitioner is such an inmate. Petitioner has been subjected to the procedures set forth in the Rule and may at any time in the future be again subjected to those procedures. Therefore, Petitioner's interest is certainly a timely and current interest and he should not be required, as argued by Respondent, to again violate the provisions of the Rule in order to gain the requisite interest necessary to challenge the validity of the Rule.

". . . (I)t appears that petitioner's interest in loss of gain-time having real substance and being sufficiently embraced within the Fourteenth Amendment 'liberty' to entitle him to due process, is a substantial interest as that term is used in Section 120.57, F.S. It follows that a Rule such as that challenged herein, which sets forth the procedure by which Petitioner's substantial interest shall be determined and his rights protected, has substantial affect upon Petitioner entitling him to challenge its validity under Section 120.56, F.S."

Any attempt to comprehend in depth the meaning of standing involves a careful study of the pertinent provisions of the new APA, compared with the 1961 Act as well as a comparison with the federal APA and the cases interpreting it.

The relief Jerry seeks is in essence an administrative declaration of his rights as affected by the DOR Rule. Florida's APA provides two distinct types of declaratory statements: (1) A declaratory statement involving the applicability of a statute, rule or order as provided by Section 120.565, and (2) a declaratory statement on the validity of a rule or proposed rule, provided by Sections 120.54 and .56.

Section 120.30, Florida Statutes (1973), repealed by Ch. 74-310, Section 4, Laws of Florida, effective January 1, 1975, permitted any "affected party" to obtain a judicial declaration of the validity of any rule of an administrative agency by bringing a declaratory judgment action in the circuit court of the county in which such party resides. 6

The legislature in enacting Sections 120.54(4)(a) and 120.56, employed more restrictive language, "substantially affected", than it did in enacting Section 120.30. The legislature must be presumed to have intended a different result by employing language describing a more limited scope of persons affected in a given situation and less restrictive language in other situations. For example, Section 120.54(3) permits all "affected persons" an opportunity to present evidence and argument on all issues under consideration appropriate to inform the agency of their contentions within 14 days after date of publication of the notice of a proposed rule.

There are very few Florida cases which have addressed the question of standing under the 1974 APA. In A.S.I., Inc. v. Florida Public Service Commission, 334 So.2d 594 (Fla.1976), our Supreme Court held that a competitor who filed a protest before the Public Service Commission to an air freight delivery company's application to transport delayed, misplaced and/or misrouted baggage from Jacksonville International Airport to specified points in northeast Florida had no standing as a substantially interested party within the meaning of Section 120.57, even assuming the competitor, A.S.I., would experience competition from the air freight delivery company's operation under its for hire permit. Later in Gadsden State Bank v. Lewis, 348 So.2d 343 (Fla. 1st DCA 1977), we held that Gadsden State Bank, a competitor of Quincy State Bank which had filed an application with the Comptroller for authority to establish a branch bank near Gadsden's existing facility, had standing as a party substantially interested in a Section 120.57(1) hearing. However, the opinion carefully pointed out that the potential competitive injury to Gadsden by a branch bank is not explicitly a matter of statutory concern under the APA, but it was made so by the Department's rule requiring, as a condition to branch banking, that local conditions assure reasonable promise of successful operation for the proposed branch. We thereby concluded that Gadsden was a party because it was made a party by agency rule defining party as a protestant in such agency proceedings.

Under the federal APA before a person may seek redress in the courts from agency action, he must be either "adversely affected or aggrieved by agency action. . . ." 7 This is practically the same standard under Section 120.68(1), permitting "(a) party who is adversely affected by final agency action . . . to (seek) judicial review." "Adverse" is different in meaning from "substantial," the former defined as "acting against or in a contrary direction"; the latter defined as "consisting of or relating to substance, . . . not imaginary or illusory . . . considerably large." 8

Despite the dissimilarities of the terms under the federal and Florida Acts, decisions involving standing in the federal courts often turn upon issues pertaining to whether a person seeking relief has shown that his interests are substantial and not illusory. The cases have no common thread running throughout and the facts must be analyzed on a case by case basis. 9

In Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), an environmental group challenged the United States Forest Service's proposed development of the Mineral King Valley, a part of the Sequoia National Forest. The group merely alleged "a special interest in conservation and sound maintenance of the national parks, game refuges and forests of the country." The Court held that standing to seek judicial review under the federal APA existed only to those who could show "that the challenged action had caused them 'injury in fact', and where the alleged injury was an interest 'arguably within the zone of interest to be protected or regulated' by the statutes that the agencies were claimed to have violated." 405 U.S. at 733, 92 S.Ct. at 1365. It stressed the importance that a party seeking judicial review must himself be among the injured for it is this requirement which gives a litigant a direct stake in the controversy and prevents the judicial process from becoming...

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    ...not demonstrated an injury except in the abstract or speculative sense, which is not sufficient. Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978). Whether the validity of the rule is or is not administratively or judicially determined, Mr. Browning ......
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