Department of Educ. v. Lewis

416 So. 2d 455, 5 Educ. L. Rep. 681
CourtSupreme Court of Florida
DecidedJuly 15, 1982
Docket61241
StatusPublished
Cited by50 cases

This text of 416 So. 2d 455 (Department of Educ. v. Lewis) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Department of Educ. v. Lewis, 416 So. 2d 455, 5 Educ. L. Rep. 681 (Fla. 1982).

Opinion

416 So.2d 455 (1982)

DEPARTMENT OF EDUCATION, State Board of Education, Ralph D. Turlington, As Commissioner of Education and As Citizen and Taxpayer, and Talbot D'Alemberte, a Citizen and Taxpayer, Appellants,
v.
Gerald A. LEWIS, Comptroller, and George Firestone, Secretary of State, Appellees.

No. 61241.

Supreme Court of Florida.

July 15, 1982.

*457 James D. Little, Gen. Counsel, and Judith A. Brechner, Deputy Gen. Counsel, State Bd. of Educ., and Chesterfield Smith and John Radey of Holland & Knight, Tallahassee, for Dept. of Educ., State Bd. of Educ. and Ralph D. Turlington.

Talbot D'Alemberte and Thomas R. Julin of Steel, Hector & Davis, Miami, for Talbot D'Alemberte.

Michael J. Coniglio, Deputy Comptroller and Michael Basile, Gen. Counsel, Office of the Comptroller, Tallahassee, for Gerald A. Lewis.

Jim Smith, Atty. Gen., and Mitchell D. Franks and Thomas R. Tedcastle, Asst. Attys. Gen., Tallahassee, for George Firestone.

Steven G. Wenzel, Vice President for Employee Relations and Legal Affairs, Tampa, and W. Reece Smith, Jr., Sylvia H. Walbolt and Mark A. Brown of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for John Lott Brown, President of the University of South Florida and Daniel R. Walbolt, as Vice President of Student Affairs of the University of South Florida, amicus curiae.

BOYD, Justice.

This case is here on the certification of the District Court of Appeal, First District, that the trial court judgment appealed to *458 that court is of great public importance and requires immediate resolution by the Supreme Court. We have jurisdiction under article V, section 3(b)(5), Florida Constitution.

House Bill No. 30-B was the general appropriations bill adopted by the 1981 Legislature and became law as chapter 81-206, Laws of Florida. The appropriations for the Department of Education and the Commissioner of Education were prefaced by the following proviso:

No funds appropriated herein shall be used to finance any state-supported public or private postsecondary educational institution that charters or gives official recognition or knowingly gives assistance to or provides meeting facilities for any group or organization that recommends or advocates sexual relations between persons not married to each other.
Sexual relations means contact with sexual organs of one person by the body of another person for sexual gratification. Any postsecondary educational institution found in violation of this provision shall have all state funds withheld until that institution is again in compliance with the law.
No state financial aid shall be given to students enrolled at any postsecondary educational institution located in Florida which is in violation of this provision.

Ch. 81-206, § 1, Laws of Fla.

The Florida Department of Education, the State Board of Education, and Commissioner of Education Ralph D. Turlington filed a complaint seeking a declaratory judgment that the above-quoted proviso is unconstitutional and void. Named as defendants were Comptroller Gerald Lewis and Secretary of State George Firestone. The complainants challenged the constitutionality of the proviso under article III, section 12 of the Florida Constitution as well as under freedom of expression principles embodied in the Florida and United States Constitutions.

Talbot D'Alemberte, a trustee of Miami-Dade Community College, filed a motion to intervene as a party plaintiff. The trial court granted the motion based on D'Alemberte's status as a citizen and taxpayer. The defendants in their answers to the complaint questioned the standing of the Department of Education, the State Board of Education, and Turlington in his official capacity as Commissioner of Education, to bring the suit. After declining to dismiss these plaintiffs, the trial court granted judgment for the defendants and upheld the proviso against all contentions of invalidity.

Before reaching the merits of the case, we must resolve the question of standing to sue.

In the court below, the appellees challenged the appellants' standing to seek a determination that the proviso is unconstitutional. While we find the individual appellants to have such standing as ordinary citizens and taxpayers, they have no standing in their official capacities. State officers and agencies must presume legislation affecting their duties to be valid, and do not have standing to initiate litigation for the purpose of determining otherwise. Barr v. Watts, 70 So.2d 347 (Fla. 1953); City of Pensacola v. King, 47 So.2d 317 (Fla. 1950); State ex rel. Watson v. Kirkman, 158 Fla. 11, 27 So.2d 610 (1946); State ex rel. Atlantic Coast Line R.R. v. State Board of Equalizers, 84 Fla. 592, 94 So. 681 (1922). In such a situation, the public officer or agency does not have a sufficiently substantial interest or special injury to allow the court to hear the challenge.

If, on the other hand, the operation of a statute is brought into issue in litigation brought by another against a state agency or officer, the agency or officer may defensively raise the question of the law's constitutionality. City of Pensacola v. King, 47 So.2d 317 (Fla. 1950); State ex rel. Harrell v. Cone, 130 Fla. 158, 177 So. 854 (1937); State ex rel. Florida Portland Cement Co. v. Hale, 129 Fla. 588, 176 So. 577 (1937). The comptroller is one officer that has been allowed by Florida courts to initiate litigation in his official capacity seeking to establish the unconstitutionality *459 of a statute. See Dickinson v. Stone, 251 So.2d 268 (Fla. 1971); Green v. City of Pensacola, 108 So.2d 897 (Fla. 1st DCA 1959), aff'd, 126 So.2d 566 (Fla. 1961). It has also been recognized that the attorney general may, in limited circumstances, initiate litigation to challenge the constitutionality of legislation. See Department of Administration v. Horne, 269 So.2d 659 (Fla. 1972); State ex rel. Landis v. S.H. Kress & Co., 115 Fla. 189, 155 So. 823 (1934); State ex rel. Moodie v. Bryan, 50 Fla. 293, 39 So. 929 (1905). The comptroller, as the state's chief officer for disbursement of funds, would have standing to challenge a proviso in an appropriations bill. But the Department of Education, the State Board of Education, and the Commissioner of Education in his official capacity, do not.

As ordinary citizens and taxpayers, however, appellants Turlington and D'Alemberte have standing to challenge the constitutionality of the proviso. In making their challenge, the appellants invoke two constitutional prohibitions: article III, section 12, Florida Constitution, governing appropriations acts; and the state and federal constitutional prohibition against state action abridging the freedoms of speech and association. Both challenges relate to the power of the legislature to tax and spend for the general welfare of the state as embodied in the appropriations bill. The proviso is challenged as an abuse of appropriations process and as an invalid directive to the postsecondary school administrators of the state concerning the spending of state funds. Therefore, appellants as taxpayers have standing to challenge the constitutionality of the proviso. Brown v. Firestone, 382 So.2d 654 (Fla. 1980); Department of Administration v. Horne, 269 So.2d 659 (Fla. 1972); Rickman v. Whitehurst, 73 Fla. 152, 74 So. 205 (1917). Cf. Flast v. Cohen, 392 U.S. 83, 88 S.Ct.

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Bluebook (online)
416 So. 2d 455, 5 Educ. L. Rep. 681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-educ-v-lewis-fla-1982.