State of Fla. ex rel. Shevin v. Exxon Corp.

• Decision Date: 22 January 1976
• Docket Number: No. 74--3309,74--3309
• Citation: 526 F.2d 266
• Parties: 1976-1 Trade Cases 60,681 STATE OF FLORIDA ex rel. Robert L. SHEVIN, Attorney General, Plaintiff- Appellant, v. EXXON CORPORATION et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 266

526 F.2d 266

1976-1 Trade Cases 60,681

STATE OF FLORIDA ex rel. Robert L. SHEVIN, Attorney General, Plaintiff- Appellant, v. EXXON CORPORATION et al., Defendants-Appellees.

No. 74--3309.

United States Court of Appeals, Fifth Circuit.

Jan. 22, 1976.

Rehearing and Rehearing En Banc Denied March 10, 1976.

Daniel S. Dearing, Chief Trial Counsel, Dept. of Legal Affairs, Civil Div., Sydney

H. McKenzie, III, Chief Trial Counsel, Robert Shevin, Atty. Gen., Tallahassee, Fla., for plaintiff-appellant.

John R. Lawson, Jr., Tampa, Fla., Robert R. Feagin, III, Lakeland, Fla., Roy C. Young, Tallahassee, Fla., for Union Oil of Calif.

William O. Mehrtens, Jr., David S. Batcheller, Miami, Fla., for Standard of Calif.

Harry Kemker, Tampa, Fla., William J. Lowry, Findlay, Ohio, for Marathon.

William Simon, Washington, D.C., J. Robert McClure, Jr., Tallahassee, Fla., for Exxon Corp.

Robert McGinnis, New York City, for Texaco, Inc.

Wade L. Hopping, Tallahassee, Fla., John E. Bailey, Jesse P. Luton, Jr., Houston, Tex., Harry P. Davis, Jr., Atlanta, Ga., for Gulf Oil.

Jack M. Skelding, Jr., John A. Madigan, Jr., Tallahassee, Fla., Donald Frickel, Andrew J. Kilcarr, Washington, D.C., for Mobil Oil.

Thomas A. Clark, Tampa, Fla., Harold F. McGuire, New York City, Wm. Reece Smith, Jr., Tampa, Fla., Oliver L. Stone, Houston, Tex., for Shell Oil.

Wilfred C. Varn, Tallahassee, Fla., Richard E. Hill, Washington, D.C., William VanDercreek, Tallahassee, Fla., Robert E. Jordan, III, Washington, D.C., for Atlantic-Richfield.

Patrick G. Emmanuel, John G. Harkins, Jr., Pensacola, Fla., Barbara W. Mather, Philadelphia, Pa., for Sun Oil.

Reginald L. Williams, Miami, Fla., John Dickey, New York City, Daniel Walbolt, Tampa, Fla., Lewis J. Ottaviani, Bartlesville, Okl., for Phillips Petroleum Co.

Turner H. McBaine, Pillsbury, Madison & Sutro, San Francisco, Cal., for Stan. of Calif.

W. M. O'Bryan, Ft. Lauderdale, Fla., Russell H. Smith, Darrel A. Kelsey, Tulsa, Okl., for Cities.

C. Lansing Hays, Jr., Otto C. Kitsinger, II, New York City, Richard S. Banick, Harold L. Ward, Miami, Fla., for Getty Oil Co.

W. B. Dickenson, Jr., Tampa, Fla., J. King Rosendale, The Standard Oil Co., Cleveland, Ohio, for Standard Oil Co. (Ohio).

M. J. Keating, Chicago, Ill., J. Lewis Hall, Tallahassee, Fla., for Standard Oil Co. (Indiana).

A. Thomas Biggers, Richard R. Linn, Houston, Tex., W. H. F. Wiltshire, Pensacola, Fla., for Continental Oil.

Appeal from the United States District Court of the Northern District of Florida.

Before TUTTLE, THORNBERRY and COLEMAN, Circuit Judges.

THORNBERRY, Circuit Judge:

In July of 1973, the State of Florida through its Attorney General commenced an ambitious and highly publicized antitrust action against seventeen major oil companies ¹ in federal district court. Among the preliminary questions raised by the defendants was the right of the Attorney General, under Florida law, ² to initiate this action without explicit authorization from other departments, agencies, and political subdivisions of the state. ³ Prior to ruling on the many other motions before it, the district court sought to resolve this threshold issue by staying the action in order for the Attorney General to obtain a declaratory judgment in the Florida courts. The Attorney General, deeming Florida law clear on the point, instead prosecuted an abortive appeal to this Court, which we dismissed without opinion for lack of a final order. The district court has since removed this obstacle, dismissing the action as one beyond

This appeal followed, with the Attorney General vigorously asserting his right to institute the lawsuit and the defendants contesting it. The oil companies, however, do not forcefully urge affirmance of the district court; they argue instead that the issue is a delicate and difficult one of state law which should be certified to the Florida Supreme Court for its definitive decision. We decline to do so under the circumstances here presented and find the Attorney General to be properly in federal court on behalf of Florida. We therefore reverse.

I.

The office of attorney general is older than the United States and older than the State of Florida. ⁴ As chief legal representative of the king, the common law attorney general was clearly subject to the wishes of the crown, but, even in those times, the office was also a repository of power and discretion; ⁵ the volume and variety of legal matters involving the crown and the public interest made such limited independence a practical necessity. Transposition of the institution to this country, where governmental initiative was diffused among the officers of the executive branch and the many individuals comprising the legislative branch, could only broaden this area of the attorney general's discretion.

As a result, the attorneys general of our states have enjoyed a significant degree of autonomy. ⁶ Their duties and powers typically are not exhaustively defined by either constitution or statute but include all those exercised at common law. ⁷ There is and has been no doubt that the legislature may deprive the attorney general of specific powers; but in the absence of such legislative action, he typically may exercise all such authority as the public interest requires. ⁸ And the attorney general has wide discretion in making the determination as to the public interest. ⁹

Thus it can be seen that the common law powers of the attorney general appear, initially at least, broad enough to support the action challenged in this case. But of course, observations concerning the historic office of attorney general or that office as it 'typically' exists in the United States cannot resolve the question before us. They can only provide background for inquiry into the specific constitutional and statutory provisions, and judicial decisions, which define the office of Attorney General of Florida. Only that inquiry will allow us to determine whether that office fully fits the common law paradigm or differs in significant respects.

Although the Attorney General of Florida is a constitutional officer, the relevant Florida constitutional provisions have never attempted to list specifically his powers. The first Florida Constitution, written in 1838, provided for an elected Attorney General who would attend sessions of the legislature, draft all necessary 'forms of proceeding' for laws passed at the sessions, and 'perform such other duties, as may be prescribed by law.' ¹⁰ In the present constitution, adopted one hundred and thirty years later, no greater specificity was attempted. In defining the cabinet, including the Attorney General who 'shall be the chief state legal officer,' the 1968 Florida Constitution provides that: ¹¹

(i)n addition to the powers and duties specified herein, (the members of the cabinet) shall exercise such powers and perform such duties as may be prescribed by law.

This constitutional provision directs inquiry to the provisions of applicable 'law'. Does this refer only to statutory provisions defining specific functions of the Attorney General or does it include the broad and unenumerated powers of the office prescribed by the common law?

We find that the common law powers still obtain for several reasons. First, Florida has, since its pre-statehood period, enacted the common law in force where not in conflict with statute. ¹² In addition, the statutory provision which does enumerate the Florida Attorney General's powers makes no pretense at being comprehensive; it provides in part that: ¹³the attorney general shall . . . have and perform all powers and duties incident or usual to such office . . ..

Finally, and most importantly, the Florida Supreme Court has consistently recognized the continuing existence of the Attorney General's common law powers. The first clear decision on the issue was the 1869 case of State ex rel. Attorney General v. Gleason, in which the Court held: ¹⁴

The Attorney-General is the attorney and legal guardian of the people, or of the crown, according to the form of government. His duties pertain to the Executive Department of the State, and it is his duty to use means most effectual to the enforcement of the laws, and the protection of the people, whenever directed by the proper authority, or when occasion arises . . . Our Legislature has not seen fit to make any change in the common law rule. The office of the Attorney-General is a public trust. It is a legal presumption that he will do his duty, that he will act with strict impartiality. In this confidence he has been endowed with a large discretion, not only in cases like this, but in other matters of public concern. The exercise of such discretion is in its nature a judicial act, from which there is no appeal, and over which the courts have no control.

This affirmation of the existence of the Attorney General's common law powers does not stand alone in Florida jurisprudence. It is echoed in case after case from Gleason to the 1972 decision in State ex rel. Shevin v. Yarborough, 257 So.2d 891 (Fla.1972). ¹⁵ See State ex rel. Ervin v. Collins, 85 So.2d 852 (Fla.1956); State ex rel. Landis v. Kress, 115 Fla. 189, 155 So. 823 (1934); State ex rel. Davis v. Love, 126 So. 374 (Fla.1930); State ex rel. Moodie v. Bryan, 50 Fla. 293, 39 So. 929 (1905). We conclude that there simply is no question that such powers exist.

II.

But even this conclusion does not decide the case before us. Although the Florida Attorney General has common law powers, such powers might not extend to the specific power asserted: the institution of an action under federal law, to recover damages sustained by departments, agencies, and political subdivisions which have not affirmatively authorized suit. And even if the specific common law power asserted exists as a general matter, it might be that Florida's constitutional or statutory law conflicts with the common law on that point and thus overrules it.

As noted...