Myers v. Hawkins
| Decision Date | 14 September 1978 |
| Docket Number | No. 52639,52639 |
| Citation | 362 So.2d 926 |
| Parties | Kenneth M. MYERS, Petitioner, v. Paula F. HAWKINS, Chairman, William T. Mayo, Commissioner, and William H. Bevis, Commissioner, of and constituting the Florida Public Service Commission, Respondents. |
| Court | Florida Supreme Court |
J. Elliott Messer, Robert S. Goldman and Robert L. Hinkle of Thompson, Wadsworth, Messer, Turner & Rhodes, Tallahassee, for petitioner.
William L. Weeks, Gen. Counsel; and Barrett G. Johnson, Tallahassee, for respondents.
Bruce C. Starling, Gen. Counsel; and Nancy G. Linnan, Asst. Gen. Counsel, Tallahassee, for Reubin O'D. Askew, Governor of the State of Florida.
James D. Whisenand, Deputy Atty. Gen. and Sharyn L. Smith and Frank A. Vickory Asst. Attys. Gen., for Robert L. Shevin, Atty. Gen. of the State of Florida, Tallahassee, amici curiae.
Philip C. Claypool, Tallahassee, for the State of Florida Commission on Ethics, amicus curiae.
We are asked by Kenneth M. Myers, a member of The Florida Bar and an elected state senator, to review an order of the Florida Public Service Commission which prohibits him from practicing before that agency. The genesis of the present controversy was Myers' request for a declaratory statement from the Commission, pursuant to Section 120.565, Florida Statutes (1977), as to whether he would be permitted to continue practicing before the Commission 1 following the 1976 adoption by the voters of Florida of the so-called "Sunshine Amendment" to the Florida Constitution. 2 Among the provisions added to the Constitution by that amendment was Article II, Section 8(e), which provides in pertinent part:
"No member of the legislature shall personally represent another person or entity for compensation during term of office before any state agency other than judicial tribunals."
The principal issues before us are whether the Public Service Commission is a "judicial tribunal" within the meaning of this provision, and if not whether the amendment applies to legislators in office on its effective date.
The Commission answered Myers' request for a declaratory statement by stating its belief that the Commission is a judicial tribunal. It nonetheless denied his right to continue practice before the Commission so that the issue could be passed upon by this Court. The governor and the attorney general, as amici curiae before the Court, challenge the propriety of this entire proceeding on the ground that the Florida Commission on Ethics, an entity created by the Sunshine Amendment, 3 is the only governmental body empowered to determine what is or is not a "judicial tribunal" within the meaning of Section 8(e).
We share amici's view that the Administrative Procedure Act, Chapter 120, Florida Statutes (1977), is not the appropriate mechanism by which to determine the meaning of ambiguous constitutional terms. 4 Indeed, declaratory statements authorized by Section 120.565 are particularly unsuited to that purpose. That section is available only to persons seeking to determine "the applicability (to them) of any Statutory provision or of any Rule or Order of the agency." (Emphasis added.) In this case the Public Service Commission endeavored to couch its order in a manner which would declare the applicability of one of its rules of practice to Myers. Nonetheless, it is quite clear that Myers had been and remained eligible to practice before the Commission but for Article II, Section 8(e) of the Constitution. 5 We now hold that an affected agency is not the appropriate body to make a determination of its own status under Section 8(e) only the Ethics Commission should make those determinations.
Nevertheless, we recognize that the procedure employed by Myers in this instance was dictated by necessity. Prior to the effective date of the Sunshine Amendment, Myers had asked the attorney general for an opinion as to his right to practice before the Public Service Commission in light of the amendment's apparent prohibition. The attorney general consulted with the executive director of the statutory predecessor of the Ethics Commission and concluded that Myers would be prohibited from practicing before the Commission. 6 (The attorney general was and is required by law to render assistance to the Ethics Commission when requested.) 7 There is no reason to believe that Myers would have obtained a different legal opinion had he requested one from the Ethics Commission after the effective date of the Sunshine Amendment, since the matter undoubtedly would have been referred again to the attorney general for advice. For this reason alone, we decline to remand this case to the Public Service Commission to discharge the proceeding under Section 120.68(13)(a), Florida Statutes (1977). The courts will not require parties to engage in a series of useless acts. Kawasaki of Tampa, Inc. v. Calvin, 348 So.2d 897, 901 (Fla. 1st DCA 1977). Accordingly, we take this occasion to construe the term "judicial tribunal" in Article II, Section 8(e) of the Florida Constitution, and to resolve Myers' status before the Commission.
The term "judicial tribunal" is found in the Florida Constitution only in Section 8(e) of Article II, although the terms "courts" and "administrative agencies" are used elsewhere frequently. We presume that the language differentiation was intentional. 8
Amici allege that the term was drafted by the governor 9 to prohibit legislators from appearing before all bodies of state government except three the courts, the Industrial Relations Commission, and the judges of industrial claims. They rely on materials submitted as an appendix to their brief, basically comprising the governor's early drafts of the proposed initiative petition which used the term "courts" and a written request of the chairman of the Industrial Relations Commission to expand the proposed terminology to embrace that tribunal and industrial claims judges.
Myers argues, basically, that whatever may have been the governor's intent when he selected this term for the Constitution, his intent is less important than the understanding of the voters to whom it was submitted for adoption. He suggests that the governor's thought processes and drafting materials were not available to the people of Florida before their vote, and that they were guided only by the bare terminology in the proposal and an explanatory flyer which accompanied the petition when it was circulated for placement on the ballot. The flyer's only reference to this provision stated:
Myers maintains that the critical word "include" is patently non-exclusive, and that the agencies listed behind it would be understood by the average voter to be examples of non-court tribunals rather than an enumeration of the only ones covered.
We have already held that the intent of the framer of a constitutional provision adopted by initiative petition will be given less weight in discerning the meaning of an ambiguous constitutional term that the probable intent of the people who reviewed the literature and the proposal submitted for their consideration. Williams v. Smith, 360 So.2d 417, No. 52,840 (Fla., opin. filed June 9, 1978).
We are charged, then, to divine how the term "judicial tribunal" and the word "include" were generally perceived by the voters of Florida. To perform this task we initially consult widely circulated dictionaries, to see if there exists some plain, obvious, and ordinary meaning for the words or phrases approved for placement in the Constitution. 10 There appear two simple enough definitions in Webster's Third New International Dictionary (1971), where the words "judicial" and "tribunal" are defined, respectively, to mean:
judicial: of, relating to, or concerned with a judgment, the function of judging, the administration of justice, or the judiciary . . . (;) of, characterized by, or expressing judgment (;) . . . belonging or appropriate to a judge or the judiciary (.) (Webster's at 1223.)
tribunal: . . . the seat of a judge or one acting as a judge: the bench on which a judge and his associates sit for administering justice . . . (;) a court or forum of justice: a person or body of persons having authority to hear and decide disputes so as to bind the disputants . . . (;) something that decides or judges: something that determines or directs a judgment or course of action (.) (Id. at 2441.) 11
The word "include" is defined in the same dictionary to be non-exclusive, as Myers suggests. 12
Beyond merely finding dictionary definitions for these terms, however, we are always obliged to interpret a constitutional term in light of the primary purpose for which it has been adopted. 13 Both Myers and the amici recognize that the Sunshine Amendment was evolved to establish an arsenal of protections against the actual and apparent conflicts of interest which can arise among public officials, and that Section 8(e) was designed specifically to prevent those who have plenary budgetary and statutory control over the affairs of public agencies from potentially influencing agency decisions (or giving the appearance of having an influence) when they appear before the agencies as compensated advocates for others.
Bearing in mind the agreed purpose of the provision, we see our responsibility, essentially, as having to draw a line between two closely related alternatives. 14 A first alternative is that the term "judicial tribunals" includes only courts (as delineated in Article V of the Florida Constitution), the Industrial Relations Commission, and the judges of industrial claims. Amici urge this position on three grounds: the gloss evident from the governor's development of the phrases; the fact that we recently...
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