Smith v. Willis

• Decision Date: 18 June 1982
• Docket Number: No. AC-469,AC-469
• Citation: 415 So.2d 1331
• Parties: Jim SMITH, Attorney General of the State of Florida, the Department of Veterans and Community Affairs, and Transgulf Pipeline Company, Petitioners, v. Ben C. WILLIS, as Judge of the Circuit Court of the Second Judicial Circuit in and for Gadsden County, Florida; and Board of County Commissioners of Gadsden County, Florida, et al., Respondents.
• Court: Florida District Court of Appeals

Page 1331

415 So.2d 1331

Jim SMITH, Attorney General of the State of Florida, the Department of Veterans and Community Affairs, and Transgulf Pipeline Company, Petitioners, v. Ben C. WILLIS, as Judge of the Circuit Court of the Second Judicial Circuit in and for Gadsden County, Florida; and Board of County Commissioners of Gadsden County, Florida, et al., Respondents.

No. AC-469.

District Court of Appeal of Florida First District.

June 18, 1982.

James M. Corrigan, Asst. Atty. Gen., Tallahassee, for Jim Smith, atty. gen.

C. Lawrence Keesey, Tallahassee, for Dept. of Veterans and Community Affairs.

Gary P. Sams, of Hopping, Boyd, Green & Sams, P. A., Tallahassee, for petitioners.

John Shaw Curry, of Johnson, Harnett, Curry & Slay, Quincy, Marva Davis, Havana, and Ernest W. Welch, of Welch & Munroe, Tallahassee, for respondents.

ROBERT P. SMITH, Jr., Chief Judge.

By petition for a writ of prohibition or common law certiorari the Attorney General and others question the circuit court's denial of a motion to dismiss and its jurisdiction to proceed upon the amended complaint of the Gadsden County Board of County Commissioners for a declaratory judgment declaring among other things that section 380.07(3), part of the Environmental Land and Water Management Act of 1972, is unconstitutional on its face. Although the circuit court action arises out of pending section 120.57 proceedings before the Land and Water Adjudicatory Commission, we find that determining that discrete facial constitutionality question is not inappropriate in circuit court declaratory judgment proceedings, and that the court did not depart from the essential requirements of law in denying the Attorney General's motion to dismiss for failure to exhaust chapter 120 remedies.

Section 380.07(3) governs proceedings before the Land and Water Adjudicatory Commission, which is the Governor and Cabinet, on appeals from development orders issued by local governments in areas of critical state concern or regarding developments of regional impact. The text of the challenged statute is:

(3) Prior to issuing an order, the Florida Land and Water Adjudicatory Commission shall hold a hearing pursuant to the provisions of chapter 120. The commission shall encourage the submission of appeals on the record made below in cases in which the development order was issued after a full and complete hearing before the local government or an agency thereof.

The Board of County Commissioners mounted this attack on section 380.07(3) after Transgulf Pipeline Company appealed to the Adjudicatory Commission from the County Commissioners' order denying Transgulf a permit to build a petroleum products terminal, a development of regional impact, in Gadsden County. The Adjudicatory Commission referred Transgulf's appeal for hearing to the Division of Administrative Hearings, whose hearing officer, on December 21, 1979, ordered a new evidentiary hearing on the Transgulf application and scheduled the hearing in April 1980. The County Commissioners had urged to the hearing officer that the hearing be conducted on the record made before the County Commission. The hearing officer evidently determined that there was no "full and complete hearing before the local government."

The scheduled DOAH hearing was postponed when the County Commissioners complained to the circuit court for declaratory relief. The original complaint alleged both that section 380.07(3) is unconstitutional on its face, because it purports to "vest judicial power in the executive department agency contrary to Article V, Section 1, Florida Constitution," and that "Sections 380.06 and 380.07 as attempted to be applied in this case by the hearing officer" are unconstitutional as "a denial of equal protection under the law to Plaintiffs." An amended complaint later elaborated the County Commissioners' attack, first, on the facial constitutionality of section 380.07(3) and, second, on the correctness of the DOAH hearing officer's decision to convene a new evidentiary hearing. On the second issue, the amended complaint couched its attack on the hearing officer's decision in terms of the County Commissioners' professed "doubt" about Transgulf's entitlement to a new evidentiary hearing under circumstances that seemed to the County Commissioners to compel a contrary result:

Plaintiffs are in doubt as to the right of Transgulf to knowingly and wilfully choose not to be represented by an attorney at the hearing before the Board of County Commissioners and choosing not to cross-examine any witness or to have any witnesses of its own testify under oath, and subsequently, by filing Notice of Appeal under Section 380.07, Florida Statutes (1977), having the matter removed from the local forum of the Board of County Commissioners and to obtain a complete full new hearing by the Hearing Officer in Tallahassee.

The amended complaint alleged the facial unconstitutionality of section 380.07(3) in the following terms:

11. Plaintiffs contend that Section 380.07(3) is in violation of Article II, Section 3 and Article V, Section 1 of the Constitution of the State of Florida in that: (1) Chapter 120 contains no provisions which relate to appellate review proceedings by an administrative agency thus denying Plaintiffs equal protection of the law by granting unbridled discretion to the Hearing Officer; (2) there is a failure to set forth adequate standards for the determination by the Hearing Officer of facts, exercise of discretion, application of priorities, application of agency policy, differences of expert opinion and final recommendations; (3) the provisions of the statute are so vague and uncertain that persons affected thereby cannot determine whether actions and procedures are proper or improper, thus violating due process clauses of both Federal and State Constitutions; and (4) the provisions of the statute contain no procedural or substantive safeguards to permit the Governor and Cabinet, acting as the Florida Land and Water Adjudicatory Commission, to carry out their constitutional duties and prerogatives through the utilization of the Department of Environmental Resources, the Department of Natural Resources, State Planning Agency, and related groups as is required by Article II, Section 7 of the Constitution of the State of Florida.

On this petition the issue is whether the circuit court, by entertaining the amended complaint notwithstanding complainants' failure to exhaust available chapter 120 administrative and judicial remedies, acted without jurisdiction or so in excess of its jurisdiction as to justify issuance of the prohibitory writ, or departed from the essential requirements of law in a way irremediable on appeal from the court's final judgment. That determination is controlled by principles settled in Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc., 361 So.2d 695 (Fla.1978); Communities Financial Corp. v. Florida Department of Environmental Regulation, --- So.2d ---- (Fla. 1st DCA 1982) [1982 FLW 866]; Ortega v. Owens-Corning Fiberglas Corp., 409 So.2d 530 (Fla. 1st DCA 1982); Key Haven Associated Enterprises, Inc. v. Board of Trustees of the Internal Improvement Trust Fund, 400 So.2d 66 (Fla. 1st DCA 1981); Rice v. Dept. of Health and Rehabilitative Services, 386 So.2d 844 (Fla. 1st DCA 1980); School Board of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA 1977); and State ex rel. Dept. of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977).

The complaint asserting "doubts" that an evidentiary hearing before the hearing officer is proper in this particular case, and asserting the unconstitutionality of section 380.07(3) as applied by the hearing officer, is transparently a collateral attack on an order which if erroneous was and is remediable by ordinary chapter 120 processes, even by immediate district court review if review of the final order would not be adequate relief, section 120.68(1). As to those questions, for the reasons particularly stated in the cited decisions of this Court and in Coulter v. Davin, 373 So.2d 423 (Fla. 2d DCA 1979), the circuit court would depart from the essential requirements of law by entertaining a collateral attack on pending administrative proceedings. Those questions and the factual issues associated with them are to be determined, if necessary, on direct review of the administrative action, and on the record underlying that action.

The facial constitutional questions are another matter. The cited decisions establish that the circuit court does not exceed its lawful powers by entertaining a contest of the facial constitutionality of a statute judged to be an essential predicate for all administrative proceedings to follow. The questions pleaded by the County Commissioners, quoted above, seem conspicuously imprecise, especially when considered (as they must be on a facial attack) independently of the circumstances that are said to make the statute unconstitutional as applied. Nevertheless, those are facial constitutional questions, and the able circuit judge declared the questions "substantial" after an examination into their merits. In the interests of judicial economy, we choose not to descend into the merits of the constitutional questions. They have not been briefed here; therefore we cannot pronounce them "spurious or frivolous." Gulf Pines, supra, 361 So.2d at 699.

Judge Ervin's dissenting opinion presents powerful arguments, based on this Court's decisions in Rice and Key Haven, that might have influenced the circuit court to allow the unresolved question of facial statutory validity to accompany other issues through the administrative process for decision, if necessary, upon direct appeal following final agency action. As we said in Ortega, our decisions in Rice and Key Haven

counseled judicial adherence to the principle of exhaustion of administrative remedies even in the presence of a constitutional question, when it is made...