Schreiner v. McKenzie Tank Lines & Risk Management Services, Inc.

• Decision Date: 11 January 1982
• Docket Number: No. UU-58,UU-58
• Citation: 408 So.2d 711
• Court: Florida District Court of Appeals
• Parties: James L. SCHREINER, Appellant, v. McKENZIE TANK LINES & RISK MANAGEMENT SERVICES, INC., Appellee.

Page 711

408 So.2d 711

James L. SCHREINER, Appellant, v. McKENZIE TANK LINES & RISK MANAGEMENT SERVICES, INC., Appellee.

No. UU-58.

District Court of Appeal of Florida, First District.

Jan. 11, 1982.

R. Larry Morris, William D. Marsh and Robert A. Emmanuel of Emmanuel, Sheppard & Condon, Pensacola, for appellant.

William H. Clark, L. Kathleen Horton, Donald A. Roark, George J. Roark and G. James Roark, III, of Roark & Roark, Pensacola, for appellees.

SHIVERS, Judge.

According to Article I, Section 2 of the Florida Constitution, "... No person shall be deprived of any right because of race, religion or physical handicap." ¹ This appeal presents us with three issues all relating to this clause, including: (1) Is the provision self-executing? (2) Does this provision of the Florida Constitution require "state action" as envisioned under the Fourteenth Amendment to the U. S. Constitution? and (3) If so, has there been "state action" in the controversy at bar?

Appellant and plaintiff below, James I. Schreiner, worked for appellee McKenzie Tank Lines, Inc. Appellee Risk Management, Inc., is McKenzie's insurer. In 1976, Schreiner was hired to perform repair work in McKenzie's shop and on the road. His duties included the use and control of motor vehicles on the highway. On February 20, 1978, Schreiner suffered an epileptic seizure resulting in a head injury. His driver's license was revoked by the State of Florida, and McKenzie ordered him to conduct work only in the shop.

Shortly thereafter, he suffered another seizure. His doctor informed him that he would not be able to perform any activities in which he would be off the surface of the ground. McKenzie reassigned the appellant to the tire room at which time he suffered a third seizure. McKenzie then dismissed the appellant from its employ on June 20, 1978. Schreiner filed suit based on a number of causes of action, including the constitutional issue, which is the only one which merits our attention. His complaint was dismissed by the trial court.

Schreiner contends he was unconstitutionally deprived of his employment due to a physical handicap. ² Section 23.167, Florida Statutes (1979), presently provides an enforcement mechanism for those individuals who feel they have been wrongly deprived of their employment related rights. However, neither § 23.161, et seq., nor the enforcement provisions of its predecessor, § 13-201, Florida Statutes (1977), were in effect at the time Schreiner was dismissed. ³ Therefore, any relief that he seeks hinges directly on Article I, Section 2. To provide relief, this section would have to be self-executing.

The test to determine whether or not a constitutional provision is self-executing was clearly set out by our Supreme Court in Gray v. Bryant, 125 So.2d 846 (Fla.1960), and has been reaffirmed on numerous occasions. See, e.g., State ex rel. Citizens Proposition for Tax Relief v. Firestone, 386 So.2d 561 (Fla.1980); Plante v. Smathers, 372 So.2d 933 (Fla.1979); Williams v. Smith, 360 So.2d 417 (Fla.1978). In essence, we are directed by Gray to determine whether or not the sentence, "No person shall be deprived of any right because of race, religion or physical handicap," sufficiently delineates "a rule by means of which the right or purpose which it gives or is intended to accomplish may be determined, enjoyed, or protected without the aid of legislative enactment." Gray, supra, at 851. In our view, this provision of the constitution is quite direct and in need of no implementing legislation.

Our view that the constitutional provision is self-executing is reinforced by Plante, supra, at 936. "A constitutional provision is to be construed in such a manner as to make it meaningful. A construction that nullifies a specific clause will not be given unless absolutely required by the context." Id. Since there were no statutory enforcement provisions in effect to provide relief between 1974, when Article I, Section 2 was amended to include the physically handicapped, and July 1, 1978, which was the effective date of the statutory protections, the only relief available would be based on the constitutional provision. A decision that the constitutional provision is not self-executing would in effect cause the provision to have been null during that period. This would negate the will of the people in approving this amendment to the constitution, and the will of the people is always the paramount consideration in determining the self-executing nature of a provision. Gray, supra, at 851.

We note in passing that the Florida Legislature has apparently adopted legislation aimed at implementing and expanding this constitutional provision in the form of §§ 23.161-23.167, Florida Statutes (Supp.1980). This legislation is geared toward protection of individuals who have been discriminated against not only on the basis of race, religion or physical handicap but due to the additional categories of color, sex, national origin, age and marital status. See, § 23.161, Florida Statutes (1979). The existence of these implementing sections might arguably indicate that the constitutional section at bar is not self-executing. As Gray notes, such a view is fallacious. "The fact that the right granted by the provision may be supplemented by legislation, further protecting the right or making it available, does not of itself prevent the provision from being self-executing." Gray, supra, at 851, citing People v. Carroll, 3 N.Y.2d 686, 148 N.E.2d 875, 171 N.Y.S.2d 812 (1958).

It is also true that the human rights provisions, §§ 23.161-23.167, Florida Statutes (Supp.1980), further provide for a mechanism not only to halt discrimination against the physically handicapped but for the imposition of relief in the form of back pay and recovery of reasonable attorney's fees. See, § 23.167(13), Florida Statutes (1979). Apparently no case has ever found that violation of a constitutional provision permits monetary relief merely because it is self-executing. Figueroa v. State, 61 Haw. 369, 604 P.2d 1198, 1206 (1980). Although a statute might add to or prescribe a penalty for violation of a self-executing constitutional amendment, it does not follow that the provision is not self-executing. Haile v. Foote, 90 Idaho 261, 409 P.2d 409, 412 (1965), citing 1 Cooley on Constitutional Limitations at 170.

Comparison of Article I, Section 2 of the Florida Constitution, to the Equal Protection Clause in the Fourteenth Amendment to the U. S. Constitution indicates that the two are similar. Cf., Purvis v. State, 377 So.2d 674, 676 (Fla.1979). In fact, many states have equal protection provisions in their state constitutions, although it appears only one state, Pennsylvania, has specifically determined that its equal protection provision is self-executing. See, Harley v. Schuykill County, 476 F.Supp. 191, 195 (E.D.Pa.1979); Erdman v. Mitchell, 207 Pa. 79, 56 A. 327 (1903). ⁴

While Article I, Section 2 is self-executing, the appellant's position would not be assisted if there is a state action requirement that he could not satisfy. The state action requirement has its roots in The Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883). The U. S. Supreme Court has noted "that the action inhibited by the first section (Equal Protection Clause) of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful...." Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161 (1947). "Individual invasion of individual rights is not the subject-matter of the amendment...." The Civil Rights Cases, supra, at 109 U.S. 11, 3 S.Ct. 21. See also, Burton v. Wilmington Parking Authority, 365 U.S. 715, 721-722, 81 S.Ct. 856, 859-860, 6 L.Ed.2d 45 (1961). "State action is not invoked; it is restrained. So, as shield rather than sword, does the Amendment secure to the people ... equal protection of the laws." King v. South Jersey National Bank, 66 N.J. 161, 330 A.2d 1, 8 (1974).

Whether there is a state action requirement under Article I, Section 2 of the 1968 Florida Constitution is a question that has not been directly confronted by any Florida court. Although the U. S. Supreme Court has determined that there is a state action requirement under the Fourteenth Amendment, this does not mean we are bound to accept that view as controlling in regard to a parallel provision of the Florida Constitution. "Yet such rulings have long been considered helpful and persuasive, and are obviously entitled to great weight." Pomponio v. Claridge of Pompano Condominium, 378 So.2d 774, 779 (Fla.1979). ⁵

Our review of the reported decisions reveals that in each and every instance that the Florida Equal Protection Clause has been invoked, there has been at least some state action present. However, there is no case in Florida specifically stating that there is a state action requirement under Article I, Section 2. To determine whether the framers and adopters intended a state action requirement, the sentence barring deprivation of any right due to a physical handicap must be read in pari materia and harmonized with the rest of Article I, Section 2. Advisory Opinion to Governor Request of June 29, 1979, 374 So.2d 959, 964 (Fla.1979); Lewis v. Florida State Board of Health, 143 So.2d 867, 869 (Fla.1st DCA 1962). The first sentence specifically states that all persons "are equal before the law." This clause indicates that this section deals with the relationship between the people and the state.

This view is bolstered by Junior Football Association of Orange v. Gaudet, 546 S.W.2d 70 (Tex.Civ.App.1976). In that case Article I, Section 3a, of the Texas Constitution, which is the Texas Equal Protection Clause, was construed to require state action to be enforceable, because that section states that "Equality under the law shall not be denied or abridged because...