WICCAN RELIGIOUS CO-OP. OF FLA. v. Zingale

• Court: Florida District Court of Appeals
• Writing for the Court: PER CURIAM.
• Citation: Wiccan Religious Co-Op. of Florida v. Zingale, 898 So.2d 134 (Fla. App. 2005)
• Decision Date: 08 March 2005
• Docket Number: No. 1D03-3324.,1D03-3324.
• Parties: The WICCAN RELIGIOUS COOPERATIVE OF FLORIDA, INC., Appellant, v. Jim ZINGALE and The Florida Department of Revenue, Appellee.

898 So.2d 134

The WICCAN RELIGIOUS COOPERATIVE OF FLORIDA, INC., Appellant, v. Jim ZINGALE and The Florida Department of Revenue, Appellee.

No. 1D03-3324.

District Court of Appeal of Florida, First District.

March 8, 2005.

Rehearing Denied April 14, 2005.

Heather Morcroft, Orlando, for Appellant.

Charlie Crist, Attorney General; Eric J. Taylor, Senior Assistant Attorney General and Nicholas Bykowsky, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellees.

PER CURIAM.

Appellant, The Wiccan Religious Cooperative of Florida, Inc., brought various constitutional challenges against sales tax exemption statutes and alleged that it was improperly and unlawfully denied a renewal of its certificate of exemption from Florida sales and use tax. The trial court granted the appellee Florida Department of Revenue's motion for summary judgment, ruling that Wiccan had standing and that the challenged statutes were constitutional.¹ The trial court also ruled that Wiccan failed to exhaust its administrative remedies regarding obtaining a renewal of its certificate of exemption. Wiccan appeals only the trial court's ruling that section 212.06(9), Florida Statutes, is facially constitutional, arguing that the trial court erred because the statutory tax exemption clearly violates the United States Constitution Establishment Clause and Free Press Clause pursuant to Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 109 S.Ct. 890, 103 L.Ed.2d 1 (1989). As part of its response, the Department argues that Wiccan is without standing to bring such a challenge. We agree.

"[W]hen standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable." Flast v. Cohen, 392 U.S. 83, 99-100, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). A proper party is essential to prevent the courts from deciding" `illdefined controversies over constitutional issues.' "Id. at 100, 88 S.Ct. 1942; see also Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, 454 U.S. 464, 473, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (stating that the courts have declined to hear cases that "would convert the judicial process into `no more than a vehicle for the vindication of the value interests of concerned bystanders'"); Poe v. Ullman, 367 U.S. 497, 505, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961) (stating that declining to hear cases where the challenging party is without standing is "`a safeguard essential to the integrity of the judicial process'"); Brasfield & Gorrie Gen. Contractor, Inc. v. Ajax Constr. Co., Inc. of Tallahassee, 627 So.2d 1200, 1202-03 (Fla. 1st DCA 1993) (stating that the reason for requiring a party to have standing is to ensure that the party "will adequately represent the interest it asserts").

In the instant case, Wiccan's constitutional challenge is that, based on the reasoning found in Texas Monthly, the Florida sales tax exemption benefits religion. The parties have stipulated that Wicca is a religion. Therefore, under Wiccan's argument that the tax exemption benefits religion, Wiccan, as a religious organization, benefits from the sales tax exemption. Accordingly, Wiccan fails to have the adverse interest necessary for standing and is not the proper party to assert the instant constitutional challenge. See Valley Forge Christian Coll., 454 U.S. at 473, 102 S.Ct. 752 (stating that a party must allege facts showing that he or she has been adversely affected); Congress of Indus. Orgs. v. McAdory, 325 U.S. 472, 475, 65 S.Ct. 1395, 89 L.Ed. 1741 (1945) (stating that the Court will not pass upon the constitutionality of legislation when the party bringing the suit cannot assert antagonistic rights); State v. Benitez, 395 So.2d 514, 517 (Fla.1981) (stating that a party cannot challenge a statutory enactment that does not adversely affect that party's personal or property rights); Chamberlin v. Dade County Bd. of Pub. Instruction, 171 So.2d 535, 537 (Fla.1965) (holding that parents who brought suit challenging certain religiously-related practices in public schools were without standing to challenge religious practices at baccalaureate programs because their children, who were enrolled in elementary schools, were not adversely affected by the challenged practice); Alachua County v. Scharps, 855 So.2d 195, 201 (Fla. 1st DCA 2003) (stating that a party who is not adversely affected by the statute he or she seeks to challenge does not have standing).

The dissent opines that the court cannot consider Wiccan's lack of standing as an appealable issue because the Department failed to file a cross-appeal. We disagree. Generally, a cross-appeal must be filed to challenge an unfavorable portion of a final judgment substantially favorable to the appellee. See Smeaton v. Smeaton, 678 So.2d 501, 501 n. 1 (Fla. 1st DCA 1996). However, this rule is procedural, not jurisdictional, and can be waived. See Walker v. State, 457 So.2d 1136, 1137 (Fla. 1st DCA 1984) (ruling that "[b]ecause the court gains jurisdiction over the entire cause at the time the notice of appeal is filed, neither the timely filing of a notice of cross appeal, nor the failure to timely file such a notice will affect the jurisdiction of the appellate court"). This permits an issue to be heard by waiver and consent, which occurred here. Both parties briefed the standing issue without objection. Furthermore, standing was argued, almost exclusively, during oral argument without objection. Accordingly, we conclude that the issue is before this court and we are not barred from considering standing in deciding this appeal as asserted by the dissent.

Therefore, we reverse, vacate the final judgment, and remand to the trial court with directions to enter final summary judgment in favor of the Department on the basis that Wiccan does not have standing.

REVERSED and REMANDED with instructions.

BROWNING and POLSTON, JJ., Concur; BENTON, J., Concurs in Part and Dissents in Part with Opinion.

BENTON, J., concurring in part and dissenting in part.

An exemption that is central to a statutory scheme purporting to authorize a discriminatory tax on the sale, use and distribution of publications, based explicitly on their content, does not conform to federal constitutional requirements. Section 212.06(9), Florida Statutes (2003), provides:

The taxes imposed by this chapter do not apply to the use, sale, or distribution of religious publications, bibles, hymn books, prayer books, vestments, altar paraphernalia, sacramental chalices, and like church service and ceremonial raiments and equipment.

§ 212.06(9), Fla. Stat. (2003). Finding no impediment to deciding the First Amendment questions appellant raises, I concur in reversing the judgment below to the extent it declared constitutional section 212.06(9)'s exemption of "religious publications, bibles, hymn books [and] prayer books."

I.

Here, as below, the contention is that section 212.06(9) runs afoul of both the Free Press and the Establishment Clauses of the First Amendment, applicable to the states by virtue of the Fourteenth Amendment. In holding constitutionally infirm an analogous sales and use tax exemption in North Carolina, the Fourth Circuit explained why a statute like section 212.06(9), insofar as it exempts religious publications, bibles, hymn books and prayer books, is unconstitutional:

In Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 109 S.Ct. 890, 103 L.Ed.2d 1 (1989), the Supreme Court held that a Texas sales and use tax exemption which applied to religious literature, but not to other types of literature, violated the establishment clause of the first amendment to the Constitution.[FN10] We agree with the appellants that this case presents a more untenable violation of the establishment clause because the Exemption specifically applies to "Holy Bibles," a religious text sacred only to members of Christian faiths.

FN10. Justices Brennan, Marshall and Stevens expressed their view that Texas' sales tax exemption for religious publications violated the establishment clause, that the exemption was not compelled by the free exercise clause, and that the Court need not determine whether the exemption contravened the free press clause as well. Justices Blackmun and O'Connor agreed that the exemption violated the establishment clause, but believed that it was unnecessary to decide whether the exemption was required by the free exercise clause. Justice White concurred in the judgment, opining that the exemption, because of its content-based discrimination, violated the free press clause. Justice Scalia, joined by Chief Justice Rehnquist and Justice Kennedy, dissented, expressing the opinion that the exemption violated neither the establishment clause nor the free press clause, and that the court's decision effectively overruled prior Supreme Court cases based on an accommodation of religion. The tax exemption at issue in Texas Monthly applied to: "Periodicals that are published or distributed by a religious faith and that consist wholly of writings promulgating the teaching of the faith and books that consist wholly of writings sacred to a religious faith." Tex.Tax Code Ann. § 151.312 (1982).

The Exemption also violates the free press clause of the Constitution. In Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987), the Supreme Court concluded that an Arkansas sales tax scheme, which exempted from taxation some but not all classes of magazines,[FN11] violated the first amendment's guarantee of freedom of the press because of its content-based discrimination.

The Court noted that "even where, as here, there is no evidence of an improper censorial motive . . . selective taxation of the press — either singling out the press as a whole or targeting individual members of the press — poses a particular danger of abuse by

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