NAACP, INC. v. Florida Bd. of Regents, 1D00-3138.

• Decision Date: 18 June 2004
• Docket Number: No. 1D00-3138.,1D00-3138.
• Citation: 876 So.2d 636
• Parties: NAACP, INC., through its Florida Conference of Branches of NAACP; Mattie Garvin, on her own behalf and as mother of Keith Garvin; and Keith Garvin, Appellants/Cross-Appellees, v. FLORIDA BOARD OF REGENTS and State Board of Education, Appellees/Cross-Appellants.
• Court: Florida District Court of Appeals

876 So.2d 636

NAACP, INC., through its Florida Conference of Branches of NAACP; Mattie Garvin, on her own behalf and as mother of Keith Garvin; and Keith Garvin, Appellants/Cross-Appellees, v. FLORIDA BOARD OF REGENTS and State Board of Education, Appellees/Cross-Appellants.

No. 1D00-3138.

District Court of Appeal of Florida, First District.

June 18, 2004.

Daniel H. Thompson and Melanie Ann Hines of Berger Singerman, Tallahassee; Mitchell W. Berger, of Berger Singerman, Fort Lauderdale, for Appellants/Cross-Appellees.

Daniel Woodring, General Counsel; Nathan A. Adams, IV, Deputy General Counsel; Jason K. Fudge, Assistant General Counsel, Tallahassee, for Appellees/Cross-Appellants.

WEBSTER, J.

This is the second time this dispute has been before us. The first time, we held that appellants/cross-appellees lacked standing to prosecute this administrative rule challenge and, accordingly, dismissed on that basis. NAACP, Inc. v. Florida Bd. of Regents, 822 So.2d 1 (Fla. 1st DCA 2002). However, we also certified to the supreme court a question that we believed to be of great public importance. Id. at 14 (on rehearing). A majority of the supreme court concluded that appellants did, in fact, have standing, and remanded to us for further proceedings. NAACP, Inc. v. Florida Bd. of Regents, 863 So.2d 294 (Fla.2003). Three justices dissented, stating that they would remand to us "for consideration of the issue of whether this case [had become] moot" in light of significant intervening changes in the entities responsible for operating the state university system. Id. at 301 (Wells, J., dissenting). Although the majority reached the merits, they stated in a footnote that their decision was not to be construed as precluding consideration of the mootness issue on remand. Id. at 295 n. 1. Following remand to us, because it appeared that the case had become moot, we issued an order directing appellants to show cause why it had not. Having now carefully considered the briefs filed by the parties, we conclude that the case is moot and, accordingly, dismiss the appeal and cross-appeal for that reason.

Appellants challenge a number of rule amendments adopted by the Florida Board of Regents in February 2000. Their principal contention has been (and remains) that the rules constitute "an invalid exercise of delegated legislative authority" (as that term is defined in the Florida Administrative Procedure Act) because there is no specific statutory authority authorizing the Board of Regents to prohibit consideration of factors that a university might deem relevant in the admissions process, such as race, national origin, or gender. See Southwest Fla. Water Mgmt. Dist. v. Save the Manatee Club, Inc., 773 So.2d 594 (Fla. 1st DCA 2000)

(explaining the test to be applied to determine whether agency rulemaking constitutes "an invalid exercise of delegated legislative authority" as that term is defined in section 120.52(8), Florida Statutes (1999)). Because we concluded that appellants lacked standing to prosecute the rule challenge, we dismissed without addressing the merits of their argument.

When appellants commenced their rule challenge, the Board of Regents was a legislatively created "body corporate," given responsibility by the legislature for adopting rules pursuant to the Florida Administrative Procedure Act applicable to the entire State University System "to implement provisions of law conferring duties on [that System]"; and for "planning for the future needs of the State University System; planning the programmatic, financial, and physical development of the system; reviewing and evaluating the instructional, research, and service programs at the universities; coordinating program development among the universities; and monitoring the fiscal performance of the universities." §§ 240.205, 240.209(1), Fla. Stat. (1999). Although its composition has changed, the State Board of Education was (and remains) a constitutionally created "body corporate," "hav [ing] such supervision of the system of free public education as is provided by law." Art. IX, § 2, Fla. Const. When the rule challenge was commenced, the State Board of Education was legislatively charged with "general supervision and control over the Board of Regents." § 240.203(2), Fla. Stat. (1999).

The Board of Regents was legislatively abolished as of July 1, 2001, and its powers transferred to a new entity known as the "Florida Board of Education." §§ 229.003(5)(a) & (b), 229.004(1)(a), Fla. Stat. (2001). In 2002, the legislature adopted a law abolishing the Florida Board of Education effective as of January 7, 2003, vesting that entity's powers in the State Board of Education. Ch.2002-387, §§ 19-21, 1058, 1065, at 3172-80, 4152-53, Laws of Fla.

However, in November 2002, Florida voters approved an amendment to article IX of the Florida Constitution which provides:

SECTION 7. State University System. —

(a) PURPOSES. In order to achieve excellence through teaching students, advancing research and providing public service for the benefit of Florida's citizens, their communities and economies, the people hereby establish a system of governance for the state university system of Florida.

(b) STATE UNIVERSITY SYSTEM. There shall be a single state university system comprised of all public universities. A board of trustees shall administer each public university and a board of governors shall govern the state university system.

(c) LOCAL BOARDS OF TRUSTEES. Each local constituent university shall be administered by a board of trustees consisting of thirteen members dedicated to the purposes of the state university system. The board of governors shall establish the powers and duties of the boards of trustees. Each board of trustees shall consist of six citizen members appointed by the governor and five citizen members appointed by the board of governors. The appointed members shall be confirmed by the senate and serve staggered terms of five years as provided by law. The chair of the faculty senate, or the equivalent, and the president of the student body of the university shall also be members.

(d) STATEWIDE BOARD OF GOVERNORS. The board of governors shall be a body corporate consisting of seventeen members. The board shall operate, regulate, control, and be fully responsible for the management of the whole university system. These responsibilities shall include, but not be limited to, defining the distinctive mission of each constituent university and its articulation with free public schools and community colleges, ensuring the well-planned coordination and operation of the system, and avoiding wasteful duplication of facilities or programs. The board's management shall be subject to the powers of the legislature to appropriate for the expenditure of funds, and the board shall account for such expenditures as provided by law. The governor shall appoint to the board fourteen citizens dedicated to the purposes of the state university system. The appointed members shall be confirmed by the senate and serve staggered terms of seven years as provided by law. The commissioner of education, the chair of the advisory council of faculty senates, or the equivalent, and the president of the Florida student association, or the equivalent, shall also be members of the board.

(Emphasis added.) The Board of Governors created by this amendment came into existence on January 7, 2003. Art. XI, § 5(d), Fla. Const. On that date, the Board of Governors met for the first time, and adopted all of the rules challenged by appellants.

Appellees contend that appellants' rule challenge is now moot because the challenged rules have been adopted by the Board of Governors, exercising its power pursuant to article IX, section 7, of the Florida Constitution, and, therefore, are not subject to challenge under the Florida Administrative Procedure Act. We agree.

Article IX, section 7(d), states that the Board of Governors "shall operate, regulate, control, and be fully responsible for the management of the whole university system." Appellees argue that such a broad grant of authority clearly includes control over admissions policies which are essential to the management and operation of the university system. We conclude that such a construction is consistent with the provision's explicit language and the intent of the framers and voters. See Caribbean Conservation Corp. v. Fla. Fish & Wildlife Conservation Comm'n, 838 So.2d 492, 501 (Fla.2003)

(holding that interpretation of a constitutional provision begins with examination of the provision's explicit language, and that a court must endeavor to construe the provision in a manner consistent with the intent of the framers and voters).

Appellees argue, further, that, with the exception of two sentences regarding the terms of members appointed to the local boards of trustees and the Board of Governors, article IX, section 7, appears to be "self-executing insofar as it bestows specific powers on the Board of Governors that may be exercised without statutory assistance." "The basic guide, or test, in determining whether a constitutional provision should be construed to be self-executing, or not self-executing,...