Save Sand Key, Inc. v. U.S. Steel Corp., 72--712
| Decision Date | 19 July 1973 |
| Docket Number | No. 72--712,72--712 |
| Citation | 281 So.2d 572 |
| Court | Florida District Court of Appeals |
| Parties | SAVE SAND KEY, INC., a nonprofit Florida corporation, Appellant, v. UNITED STATES STEEL CORPORATION, a Delaware corporation, Appellee, v. STATE of Florida ex rel. Robert L. SHEVIN, as Attorney General of the State of Florida, Co-Plaintiff-Appellee. |
Tom R. Moore, Clearwater, for appellant.
Thomas A. Clark, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, and Dennis P. Thompson, of Richards, Nodine, Gilkey, Fite, Meyer & Thompson, Clearwater, for appellee United States Steel.
This may be said to be an 'environmentalist' action; but vested public property rights rather than adverse ecological changes are essentially claimed, and the question herein is 'standing' to sue.
Appellant Save Sand Key, Inc., a nonprofit citizens' group, seeks to enjoin United States Steel from interfering with certain alleged vested rights of its members in and to a portion of the soft sand beach area of Sand Key, a gulf-front island in Pinellas County. Such rights were heretofore enjoyed in common with the public and are said to have been acquired by prescription, implied dedication and/or general and local custom. Additional counts in the complaint seek injunctive relief from an alleged public nuisance in the form of a purpresture (i.e., a barrier) blocking enjoyment of those rights. The Attorney General of Florida joined as plaintiff.
Upon appellee's motion the trial court dismissed Save Sand Key, Inc. from the suit 'with prejudice' for the reason that it 'lacks standing' to sue. The court refused to dismiss the Attorney General, however, permitting him to pursue the action insofar as it pertains to the alleged public nuisance. 1 We reverse the dismissal of appellant Save Sand Key.
In ruling adversely to appellant the trial judge relied expressly on the decision of our sister court in the First District in Sarasota County Anglers Club, Inc. v. Burns. 2 In that case members of the plaintiff club were seeking to abate a public nuisance allegedly resulting from the dredging and filling of certain bottom lands over and to which plaintiffs claimed a right of recreational use and access in common with the public. The District Court affirmed a dismissal of the suit stating as grounds therefor, first, that there was no statutory authority to bring the action and, secondly, the plaintiffs had no standing to sue otherwise because they '. . . have failed to show in what manner they have been damaged as private citizens Differing in kind from the general public. . . .' (Italics ours.) Summarized, the holding was that except when provided otherwise by special statute, a private citizen can seek to abate a public nuisance only if he himself suffers or is about to suffer an injury different in kind from all other members of the public.
Necessarily, of course, that must be the holding of the lower court in this case. But we perceive a more profound and complex problem here. The full question to be answered in this case is whether an organization such as appellant which asserts certain vested property rights in the public generally, and thus derivatively in its members individually, can sue to enforce or protect those rights on behalf of those of its members who are personally aggrieved by an intrusion thereon, even though such rights are non-special and are enjoyable in common with every other member of the public.
In answering this question we first examine the basis of the trial court's ruling, and of that in Sarasota County Anglers Club. Supra. In neither case was a statutory right of action involved, so relief was denied in each instance because the complainants suffered no alleged special injury differing in kind from that suffered by the public generally. Historically, this 'special injury' concept finds its roots in public nuisance suits, 3 the theory being that the threat of multipliciousness in such cases is a greater evil than the nuisance. In the 1894 case of Jacksonville, T. & K.W. Ry. Co. v. Thompson, 4 for example, relief was denied a plaintiff who was seeking redress for an alleged obstruction of a public road by the defendant railroad '. . . chiefly to avoid multiplicity of actions; for by the same reason that it may be brought by the plaintiff it may be maintainable by every person passing that way' . . ..' Relief in such cases, if it was sought at all, had to be sought by the public official in whom the duty rested to look into these things. An individual's remedy, it was assumed, was at the ballot box if that public official was derelict in the premises.
A policy of judicial restraint--indeed passivity--thus arose in these matters in which the courts apparently considered as Unreviewable the inaction of public officials in failing to exercise their official discretion in favor of abating public nuisances. This negative course was pursued rather than the affirmative one of taking cognizance of a potential right in an individual complainant to seek redress. 5 A policy, no doubt, which prompted the legislature in 1917 to authorize a private citizen to maintain a suit to abate certain public nuisances none of which, as in the Sarasota County Anglers Club case, Supra, is involved here. 6
But all too often, we observe, the aforesaid duty to abate nuisances rested overly long in the bosom of the appointed officials, and relief was indeed ultimately never attained by the public or anyone else. Moreover, with more than passing frequency, a public injury was created, encouraged or perpetuated by public officials themselves, witness the many taxpayers' suits attacking mischievous expenditures of public funds, 7 the mandamus actions to compel enforcement of valid laws or ordinances 8 and injunction suits to prevent enforcement of allegedly void laws or ordinances. 9 Understandably, of course, public officials were loathe to sue one another.
Yet even in those actions in which private citizens did undertake to sue, though such suits may not have been strictly 'nuisance' suits, as such, the 'special injury' concept spilled over and was early deemed to be a controlling principle on the question of standing. As a result, many a 'right' went without protection. In general, it may be said, it developed that if almost any injury was suffered jointly with the public a single citizen so victimized could not be heard to complain unless his injury was special in that it differed in kind and degree from the public's. 10
But it is anathema to any true system of justice to proclaim that a right may be enjoyed by all yet none may protect it. Accordingly, except in strictly nuisance cases to date, the obvious recent trend is to open the courts to afford relief to many more parties plaintiff than were heretofore entitled thereto under the 'special injury' rule so broadly applied. As noted by Mr. Justice Boyd in Renard v. Dade County, 11 a suit to void a zoning ordinance, '. . . changed conditions . . . require a more lenient application of (the special injury) rule . . ..' Likewise, in Department of Administration v. Horne, 12 a taxpayers' suit to avoid an illegal appropriation, our Supreme Court speaking through Mr. Justice Dekle rejected the 'special injury' rule in recognizing 'standing' to sue when the plaintiff's attack was based on constitutional grounds. In doing so, the Horne court expressly relied on the United States Supreme Court case of Flast v Cohen, 13 a case illustrative of the recent thinking of the federal courts on the question. In Flast, the court departed from the 'special injury' concept apparently first appearing in the federal system through frothingham v. Mellon in 1923. 14 In the latter case, as in early Florida cases, the initial fear was of the vice of multiplicity. But such fear, it was held in Flast, was insufficient reason to close the courthouse door to a responsible taxpayer even though he was in no different position than every other taxpayer.
So the trend in Florida and in the federal courts is to broaden 'standing to sue' assuming, of course, a stated cause of action based on some right or injury judicially recognized, and further assuming compliance with fundamental 'case and controversy' principles, i.e., the requirement of a bona fide adversarial dispute. 15 Moreover, this trend is indeed mandated, we think, by our recently amended constitutional provision relating to access to our courts. Section 21, Declaration of Rights of the Florida Constitution, F.S.A., 16 now provides that the courts 'shall be open to every person for redress of Any injury. . . .' (Italics ours.) This language is clearly less restrictive than that of its precursor which provided that judicial redress was limited to cases involving injury to 'lands, goods, person or reputation.' 17 It is the obvious present intent of the people of Florida that the right to judicial relief be without express limitation.
We think it's time to say, therefore, that the 'special injury' concept serves no valid purpose in the present structure of the law and should no longer be a viable expedient to the disposition of these cases. Given Any right, fundamental justice demands its protection. We fear not multipliciousness, as did the earlier courts, because such fear ignores both the deterring economic influences flowing from the great expense of litigation these days and the precedential value of a prior decided case on a given point. 18 Furthermore, the increasing number of well-tried class actions tend to further limit litigation because of the principles which inhere within the doctrine of res judicata. Finally, we observe, 'spite suits' or harassment will not be tolerated any more in this type suit than in any other. In a word, the 'multiplicity' argument is no longer there.
We now consider whether the organizational plaintiff-appellant herein is a proper party to complain on behalf...
To continue reading
Request your trial
-
Florida Medical Ass'n v. Department of Professional Regulation
...without comment: General Development Corp. v. Kirk, 251 So.2d 284, 287 (Fla. 2nd DCA 1971); Save Sand Key Inc. v. United States Steel Corporation, 281 So.2d 572, 577 (Fla. 2nd DCA 1973) decision quashed, sub. nom. United States Steel Corporation v. Save Sand Key, Inc., 303 So.2d 9 (Fla.1974......
-
U.S. Steel Corp. v. Save Sand Key, Inc.
...This cause is before us on certiorari granted to review the decision of the District Court of Appeal, Second District, reported at 281 So.2d 572 (Fla.App.1973), which directly conflicts with this Court's decision in Sarasota County Angelers Club, Inc. v. Kirk, 200 So.2d 178 (Fla.1967), thus......
-
Streicher v. U.S. Bank Nat'Lass'N
...matter (thus standing to bring suit) cannot be conferred by consent."), overruled on other grounds by Save Sand Key, Inc. v. U. S. Steel Corp., 281 So. 2d 572 (Fla. Dist. Ct. App. 1973), quashed, 303 So. 2d 9 (Fla. 1974); Silver Star Citizens' Comm. v. City Council of Orlando, 194 So.2d 681......
-
Surface Water Management Permit No. 50-01420-S, Matter of, J-M
...390 So.2d 64 (Fla.1980); Orange County Audubon Society v. Hold, 276 So. 2d 542 (Fla. 4th DCA 1973); Save Sand Key, Inc. v. United States Steel Corporation, 281 So.2d 572 (Fla. 2d DCA 1973). We recognize that more than a "specific interest" must be demonstrated to determine the right of acce......
-
A Not-So-Little Problem with Precedent: Intra-district Conflict in Florida District Courts of Appeal.
...court of appeal or of the supreme court on the same question of law" (emphasis added)). (8) Save Sand Key, Inc. v. U. S. Steel Corp., 281 So. 2d 572 (Fla. 2d DCA 1973), decision quashed, cause remanded, 303 So. 2d 9 (Fla. 1974); Gelis v. State, 287 So. 2d 368 (Fla. 2d DCA 1973); Davis v. St......