Title: In The District Court of Appeal, 5th District, Florida
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Title: In The District Court of Appeal, 5th District, Florida
Alternate Title: In The District Court of Appeal, 5th District, Florida. SWFWMD Executive Director and SWFWMD, Defendants/Appellants v. Hardee, Hernando, and DeSoto Counties, NW Hillsborough Basin Board, Florid a Citrus Mutual, and others. Plaintiffs/Appellees. Case No. 8
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Spatial Coverage: North America -- United States of America -- Florida
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General Note: Box 4, Folder 1 ( SF BASIN BOARD CONCEPT ), Item 1
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IN THE DISTRICT COURT OF
APPEAL, FIFTH DISTRICT,
STATE OF FLORIDA


Gary W. Kuhl, as Executive Director
of the Southwest Florida Water
Management District, and the
Governing Board of the Southwest
Florida Water Management District,

Defendants/Appellants

v.

Hardee County, a political CASE NO. 84-1152
subdivision of the State of
Florida; Hernando County, a
political subdivision of the State
of Florida; DeSoto County, a
political subdivision of the State
of Florida; Northwest Hillsborough
Basin Board, Florida Citrus Mutual,
William R. McMullen, Gail Parsons,
Stanton L. Reese, Patricia R.
Pieper, John B. Sargeant, Charles
0. Kuharske, Allan K. Stone, Jean
Perchalski, Charles E. Booth,
Charles H. Martin, James Lloyd
Ryals, Berryman T. Longino and
Derrill McAteer,

Plaintiffs/Appellees




APPELLEE'S ANSWER BRIEF

MYGNON C. EVANS
Vice President,
Staff Legal Counsel
Florida Citrus Mutual
P. O. Box 89
Lakeland, FL 33802
813-682-1111











TABLE OF CONTENTS

Table of Citations ......... .. .. ii

Preliminary Statement ................ v. iii

Points on Appeal .................... x

Part A

I. THE PRELIMINARY INJUNCTION WAS PROPERLY ISSUED.

II. THE PROPRIETY OR LACK THEREOF OF THE TEMPORARY
INJUNCTION IS NOW MOOT.

Part B

I. THE MOTION ADOPTED BY THE GOVERNING BOARD ON
JULY 11, 1984, CONSTITUTED RULE ADOPTION IN
VIOLATION OF THE REQUIREMENTS OF CHAPTER 120.

II. THE GOVERNING BOARD ACTION OF JULY 11, 1984,
REPRESENTS A VIOLATION OF SECTION 373.0697,
FLORIDA STATUTES.

III. THE ACTION OF JULY 11 SHOULD BE DECLARED VOID
ON PRINCIPLES OF EQUITY.

Statement of the Case .. . ........ 1

Statement of the Facts .. . ........ 2

Argument ................... .. .. 15

Conclusion . . . . . 49

Certificate of Service ............ .. . 51



















i












TABLE OF CITATIONS


Cases: Page

Bliven v. Turville, 100 So.2d 91 (2nd DCA 1958)
at 92 . .. . .. . . 30

Boston and Florida Atlantic Boast Land Company
v. Alford, 150 Fla. 296, 8 So.2d 483 (Fla. 1942. 48

Bowling v. National Convoy and Trucking
Company, 101 Fla. 634, 135 So. 541 (Fla. 1931) . 23, 24

Brooker v. Smith, 108 So.2d 790 (2nd DCA 1959) .49

Bruce's Juices, Inc. v. King, 61 So.2d 175 (Fla. 1952).17, 46

Clermont Minneola Country CluD, Inc. v. Loblaw,
106 Fla. 122, 143 So. 129 (1932) . . .. 47

Colburn v. Highland Realty Co., 153 So.2d 731
(2nd DCA 1963) . . . . 17

Coleman v. Coleman, 191 So.2d 460 (1st DCA 1966). 17

Department of Revenue v. U.S. Sugar Corp., 388 So.2d
596 (1st DCA 1980) ............... 33, 34

Duvallone v. Duvallone, 409 So.2d 1163
(3rd DCA 1982) . . . . 26

General Development Corporation v. Division of
State Planning, Department of Administration,
353 So.2d 1199 (1st DCA 1978) . . .. 34

Gill v. Smith, 117 Fla. 176, 157 So. 657
(1934) ........... ............ . . 17

Florida Home Builders Assn. v. Department of
Labor, 412 So.2d 351 (Fla. 1982) . . .. 23

Fla. Tallow Corp. v. Bryan, 237 So.2d 308
(Fla. App. 1970) . . . . 38

Gay v. Coral Gables, 47 So.2d 529 (Fla. 1950). 39

Gulfstream Park Racing Association v. Division
of Pari-Mutual Wagering, 407 So.2d 263 (3rd DCA
1981) . . . . . 33

Harper v. State, 217 So.2d 591 (3rd DCA 1968)
writ discharged 224 So.2d 684 . . ... 39



ii











Table of Citations
Page 2

Harris v. Florida Real Estate Commission, 358 So.2d
1123 (1st DCA 1978) . . . . 33

Hidden Harbour Estates, Inc., v. Basso, 393 So.2d 637
(4th DCA 1981) . . . . . .26

Johns v. Bowden, 68 Fla. 32, 66 So. 155 (1914) .. .. 47

Langford v. Read, 69 Fla. 198, 68 So. 723 (Fla. 1915). 48

Leesburg v. Knight, 164 So.2d 547 (2nd DCA 1964). .. 49

McCormick v. Bond, 75 Fla. 819, S. 681 (Fla. 1918). 30

McDonald v. Department of Banking & Finance,
346 So.2d 569 (1st DCA 1977). . ..... . 34

McDonald v. Roland, 65 So.2d 12 (Fla. 1953). . 38

McKeown v. Evans, 73 Fla. 34, 73 So. 841 .... 29, 30

McMichael v. McMichael, 158 Fla. 413, 28 So.2d
692 (Fla. 1947) . . . . 48

Miller v. Duke, 155 So.2d 627 (1st DCA 1963) .. 17, 46

Neal v. Bryant, 149 So.2d 529, 97 ALR 2d 819
(Fla. 1962) . . . . . 38

Nelson v. State, 84 Fla. 631, 94 So. 680
(Fla. 1922) . . .. .. . 46

Pederson v. Green, 105 So.2d 1 (Fla. 1958). .. .. 38

Peters v. Brown, 55 So.2d, 334 (Fla. 1951). ... . 49

Pierce v. Scott, 142 Fla. 581, 195 So. 160 (1940). 17, 46

Price v. Gordon, 129 Fla. 715, 177 So. 276 (Fla. 1937) 24

Price Wise Buying Broup v. Nuzum, 343 So.2d 115
(1st DCA 1977) ...... . .. . .. 33

Quinn v. Phipps, 93 Fla. 805, 113 So. 419,
54 ALR 773 (Fla. 1927). .. . . . ... 49

Reinhold Construction, Inc. v. City Council of
Vero Beach, 429 So.2d 600 (4th DCA 1983) . ... 27




iii












Table of Citations
Page 3


Roberts v. Roberts, 84 So.2d 717 (Fla. 1956) .. ... 48

Sadowski v. Shevin, 351 So.2d 44 (3rd DCA 1976) ..... 27

Schupler v. Eastern Mortgage Co., 160 Fla. 72,
33 So.2d 586 (1948) . . . . 17, 47

Schmitt v. Bethea, 78 Fla. 304, 82 So. 817
(Fla. 1919) .. . . . .. . 48

State Department of Administration v. Harvey,
356 So.2d 323 (1st DCA 1977) . . . .. 34

State v. Gale Distributors, Inc., 349 So.2d 150
(Fla. 1977). . . . . . 39

Taylor v. Rawlins, 86 Fla. 279, 97 So. 714, 35 ALR
271 (Fla. 1923). .. . .... . .... 49

Tatzel v. State 356 So.2d 787 (Fla. 1978) .. ... 39

University of Texas, et al v. Camenish, 51 U.S. 390,
68 L.Ed 2d 175, 101 S.Ct. 1830 25 CCH EPD P 31725
(U.S. 1981) at 395. . . . . .. 15, 26

Wells v. Cochrane, 188 So. 87 (Fla. 1939). 27

White v. Means, 287 2d 20 (Fla. App. 1973). .. ...... .38

Wilson v. Sandstrom, 317 So.2d 732 (Fla. 1975)
Cert denied 423 U.S. 1053, 46 L.Ed 2d 642, 96 S.Ct.
782. . . . . . . 18, 25

Wicker v. Board of Public Instruction, 106 So.2d 550
(Fla. 1958) . . . . . 49















iv











Table of Citations
Page 4


I. Constitutions

Constitution of the United States
Amendment XIV .. . . .. .. . 22

Constitution of Florida
Article I, Section 2. . .. .. .. 22
Article I, Section 9 ............. 22
Article VII, Section 9 .. . ...... 9, 10, 42

II. Statutes

Florida Administrative Procedure Act. ..... 33, 37, 50
Florida Water Resources Act. .. .. .. .. 3, 8


Section 11.45(2) ..... .......... .44

Chapter 120 . . . . .31, 34,37

Section 120.52(15). . . ... 32

120.52(15)(c) (1) . . . 35

Section 200.065. .. ........ 18, 20

200.065(2) (d) . . . 23


Chapter 373. . . . .. . .. .2, 8, 41,
47, 48
373.0693 .. . . 3, 40

373.0693(2) .... . . 8, 22

373.0693(4) ............ .8

373.0693(7) .. . .. . .2,31

373.0695. ...... . . 3, 7, 14
31, 34, 36,
40, 43

373.0695 (1) (a) . . . 43

373.0695(1) (f) . . . 43

373.0695 (2) (e) . . . 43

373.0695 (2) (f) . . . 43


v











Table of Citations
Page 5

373.0697 . . . .7, 8, 9, 38
40, 41, 42

373.073(1)5.g. . . ... 5

373.503. . . . ... 48

373.503(3) . . . .10, 40, 42


III. Laws of Florida


Chapter 59-1002 . . . .4

61-691 . . . .2, 3, 4,5,6
10, 11, 12, 31,
40, 41, 47, 48

61-691, Sec. 3. .. . 6

61-691, Sec. 5. . . 6, 10

61-691, Sec. 6. . .. 7, 10

61-691, Sec. 7(2) . 7, 8, 10

61-691, Sec. 8 . .. 7, 10

61-691, Sec. 9. . ... . .10

Chapter 73-190. . . . .6, 8, 9

73-190, Sec. 6. . . .8

Chapter 76-243. ... . . .42



IV. Other

Fla Jur 2d "Equity" Section 8 . ... 17

Fla Jur 2d "Injunctions" Section 9. ... 18

"Injunctions" Section 74. ... 17

Fla Jur 2d "Pleadings" Section 97 .. .... 16-17

Florida Rules of Civil Procedure. . .28


vi










Table of Citations
Page 6


Other


Maloney, Plager, Ausness, and Canter,
Florida Water Law 1980, University of Florida
Publication No. 50 (1980) . .... 3












































vii











PREFACE



The Order of July 31, 1984, issued by the Circuit Court

of the Fifth Judicial Circuit in and for Hernando County

is properly before this court on appeal of a Non-Final Order.

It would, therefore, be appropriate for this brief to address

only the propriety of that particular Order. On the other

hand, the Initial Brief of Appellants contains arguments

directed at the final substantive disposition of the case.

It is unclear to Appellee whether the issues on appeal

are limited to those raised by the circuit court Order of

July 31, 1984, or whether they encompass the issues relevant

to the issuance of a permanent relief. Because of this lack

of certainty regarding the issues on appeal, Counsel for

Appellee has drafted a bifurcated brief. If this Court

determines that the only issues on appeal are those which

relate to the Non-Final Order of July 31, 1984, then the

only argument presented in this brief is under Part A. If,

on the other hand, this Court reaches at this time to issues

regarding permanent relief and the ultimate merits in this

litigation, Appellee's arguments are contained in Part B.

Appellee accepts the abbreviations given in Appellants'

preliminary statement unless otherwise specified. Since

three transcripts are appended to this brief, they will be









viii











distinguished by forum and subject matter; the transcript

of the hearing on the Basin Board Concept will be identified

as Tr./BBC; that of the District hearing on the budget will

be identified as Tr./Budget; the hearing in the Circuit

Court on July 31 will be identified as Tr./C.Court. Documents

filed with the Circuit Court will be identified as "Record"

and assigned a number. Other documents appended to this

brief, such as maps, affidavits and government documents

shall be identified as "Appendix" and assigned a letter.


































ix












POINTS ON APPEAL



PART A

I. THE PRELIMINARY INJUNCTION WAS PROPERLY ISSUED.

II. THE PROPRIETY OR LACK THEREOF OF THE TEMPORARY
INJUNCTION IS NOW MOOT.

PART B

I. THE MOTION ADOPTED BY THE GOVERNING BOARD ON JULY
11, 1984, CONSTITUTED RULE ADOPTION IN VIOLATION
OF THE REQUIREMENTS OF CHAPTER 120.

II. THE GOVERNING BOARD ACTION OF JULY 11, 1984,
REPRESENTS A VIOLATION OF SECTION 373.0697,
FLORIDA STATUTES.

III. THE ACTION OF JULY 11 SHOULD BE DECLARED VOID
ON PRINCIPLES OF EQUITY.
































x











STATEMENT OF THE CASE



Appellee takes strong exception to one element of Appellants'

Statement of the Case: the July 31 hearing was based solely

on Appellees' Petition for a Temporary Injunction. The hearing

did not encompass any other issues or proposed relief. The

Judge's opening statement on that day very clearly stated

that that was the only issue to be heard that day.

Appellee also notesthat Appellants' Motions to Strike

and Dismiss were never properly served upon three of the

four attorneys representing Petitioners/Appellees. One

attorney received the Motions and supporting memoranda about

fifteen minutes prior to the hearing; the other two attorneys

received copies in the courtroom itself.

Appellee adds that the Non-Final Order of July 31 was

drafted jointly by Counsel for Appellants and Appellees.

Those participating in the drafting included General Counsel

for SWFWMD and one of his assistants, as well as the Executive

Director and Assistant Executive Director of SWFWMD.

















1











STATEMENT OF THE FACTS


On July 11, 1984, the Governing Board of the Southwest

Florida Water Management District (SWFWMD) disemboweled its

eight basin boards. Under the pretense of preserving the

"basin board structure", the governing board gutted basin

board budgets --- half of them were cut by 85% or more ---

and adopted a policy based upon district General Counsel's

opinion that basin boards were not authorized to perform

a multitude of functions which they had, in fact, performed

for many years.

In the southwest portion of peninsular Florida, basin

boards have long occupied a position of responsibility and

authority unparalleled in other parts of the state. Here,

basin boards were created by the same legislative act

that created SWFWMD. (Chapter 61-691, Laws of Florida).

Here, the geographic boundaries of the district are co-term-

inous with the collective boundaries of the basin boards.

Appendix A. The composition, powers, organization and duties

of basin boards in this part of Florida have long been

governed by not only the provisions of Chapter 373, Florida

Statutes, which applies to all five water management districts,

but also by Chapter 61-691, Laws of Florida, which created
2/
SWFWMD and its basin boards.2/
1/ Depending upon one's interpretation, Chapter 61-691, Laws
of Florida, either created SWFWMD's basin boards or mandated
their creation.
2/ The Manasota Basin Board was created later, also by the
legislature, to be composed of Manatee and Sarasota Counties.
Section 373.0693(7).


2











In view of Appellant's efforts to discredit SWFWMD's basin

boards as some type of "single-purpose district" made obso-

lescent by the 1972 Water Resources Act, we need only point

to the fact that it was the 1973 legislature which wrote

into the statutes the broad grant of authority to basin boards

found here today, (Section 373.0695, Florida Statutes) as

well as the provisions for county representation on the basin

boards and the appointment of basin board members by the

Governor subject to Senate confirmation. (Section 373.0693,

Florida Statutes). It was also the 1976 legislature which

provided that basin boards would have 75% of the total SWFWMD

millage capabilities. (Section 373.503, Florida Statutes).3
In late June, early July, basin board members and others learned

of a district proposal to abolish basin boards and assume

their ad valorem taxing capabilities. (Appendix B). The

proposal had become a legal possibility by virtue of legislation

adopted on May 31, 1984; state legislators from the area,

including the chairman of the House sub-committee which reviewed

a companion bill, condemned the action; (Appendix C) the

SWFWMD lobbyist, they said, had misrepresented the proposal

(which involved repeal of particular sections of Chapter
C/D/E/F
61-691, Laws of Florida) to them; (AppendixA ) he had described

it as a mere procedural "housekeeping" proposal when in fact,

it was the launching pad for getting rid of basin boards

which had performed vital functions for 23 years and whose

3/ It should be noted also that the sub-chapter or single
purpose districts in Florida Water Law 1980 by Maloney, Plager
Ausness and Canter (University of Florida 1980) does not
include or even remotely suggest that basin boards of
water management districts are included in that category.


3











taxing capabilities were three times as great as the govern-

ing board's. Official records of Senate and House committees

(AppendixG &H ) as well as individual communications of legislators

(AppendixD,E,F) and of the lobbyist (Appendix I&J) substantiate

the assertion that the district misrepresented the proposed

repeal of certain sections of 61-691, Laws of Florida.

A public furor that attached to the proposed destruction

of the basin boards --- described as "a great public outcry"

by Ms. Mary Kumpe, whose governing board motion gutted their

budgets, (Tr./BBC 116) --- can be understood only in the context

of the functions the basin boards have performed and the

span of time in which they have functioned. Basin boards

have existed in southwest Florida for some 23 years. In

fact, the predecessor to the Peace River Basin Board was

created by Florida Legislature in 1959. (Chapter 59-1002,

Laws of Florida). They have operated effectively for more

than two decades as junior partners with the district. For

instance, for the Tampa Bypass Canal, a large multi-million

dollar flood control project, the Hillsborough River Basin

Board levied the taxes to purchase the land for the canal;

the district served as local sponsor and coordinated construction

activities with the U.S. Army Corps of Engineers. Ultimately,

the project was dedicated to the district but, to this day,

the Hillsborough River Basin Board retains responsibility

for maintenance of the canal.







4











The basin boards also provide a representative function

that is of substantial Equal Protection and Due Process

significance. Although basin board members are appointed

(by the Governor), they must reside in the basin administered

by the basin board to which they are appointed; each county

that is a part of any particular basin must be represented

by at least one basin board member. (Section 373.0693, Florida

Statutes). Under 61-691, County Commissions were to recommend

possible appointees to the Governor.

By way of contrast, the district covers sixteen counties;

the governing board is composed of nine members. (Section

373.073, Florida Statutes). It necessarily follows that

at least seven counties must be unrepresented at any given

time on the governing board. In point of fact, the lack

of representation is significantly worse than that because,

by statutory mandate (Section 373.073(1)5.g), both Hills-

borough and Pinellas Counties are guaranteed at least two

representatives each; therefore, at least nine counties must

be unrepresented on the governing board. At the present

time, the counties without representation on that board are:

Charlotte, DeSoto, Hardee, Hernando, Highlands, Lake, Levy,

Marion and Sumter.

Taxpayers in these counties, as well as in the counties

which are represented, can be required to pay taxes levied

by the governing board up to .25 mill at the present time;

i











under the proposal to transfer all taxing capabilities to

the governing board, they could be required to pay up to

1 full mill.

For the first decade of their existence, the basin

boards (and SWFWMD) relied solely upon 61-691 as their "charter".

Even with the adoption of 73-190 in 1973 (its provisions

applicable to all water management districts), 61-691 con-

tinued as viable law to the extent that there was not a

direct conflict with statutory provision. In fact, 61-691

gave SWFWMD's basin boards a significant degree of independent

status and a broad base of authority.

Section 5 of Chapter 61-691 provided that the entire district

would be subdivided into "watershed basins to include each

major stream and its tributary streams and all lands draining

therein". In section 3, it identified four of these major

watershed basins by name: The Oklawaha (later transferred),

the Withlacoochee, the Hillsborough and the Peace Rivers,

and identified others by geographic description. Section

5 provided that each basin, except the Green Swamp basin,

would be "under the control of a basin water management

board", whose members would be appointed by the Governor

from a list of nonimees submitted by the county commissions.

Section 5 of 61-691 further provided for a Green Swamp

watershed basin to be under the control of the district

governing board. Creation of other watershed basins was





6











mandated, subject to the proviso that the governing board

could change basin boundaries, other than the Green Swamp,

only to "correct inequities or to create new watershed basins

or sub-watershed basins".

Section 6 of 61-691 outlined an extensive list of the

duties of the basin boards that largely parallels the duties

specified in Section 373.0695, Florida Statutes, today. The

duties include preparation of engineering plans for water

resources development, development of overall basin secondary

water control facilities, preparation of the annual basin

budget, approval or disapproval of construction plans by

the district for works to be constructed in the basin and

"administration of affairs" of the basin board.

Subsection (2) of Section 7, which largely parallels

Section 373.0695, Florida Statutes, likewise provided an

extensive list of functions for which basin tax monies were

authorized. These included engineering studies, payment

for plans and specifications for basin works construction

and payment of costs of construction and of maintenance and

operation of basin works, "administrative activities", payment

for rights of way, and payment for ancillary construction

resulting from basin works.

Section 8 of 61-691 addressed the question of taxation.

In language almost identical to that of Section 373.0697,

Florida Statutes, this particular subsection of 61-691




7











provided that a basin tax levy "shall be made" by the

governing board to finance basin functions enumerated in

the preceding section. The same subsection contained the

proviso "provided that no such tax shall be levied within

the basin unless and until the annual budget required tax

levy shall have been approved by formal action of the basin

water management board". Identical language is found in

Section 373.0697, Florida Statutes, today.

In 1972, the Florida Legislature adopted the Florida Water

Resources Act which was codified into Chapter 373, Florida

Statutes. This act provided for the division of Florida

into five water management districts. The act provided

for a broad regulatory scheme over consumptive uses of water

and over diversions and impoundments of surface waters. The

1972 act did not address basin boards.

The following year, the legislature adopted Chapter 73-

190, Laws of Florida. Section 6 of 73-190 authorized creation

of basin boards within any water management district. It

provided for appointment of basin board members by the Governor,

subject to confirmation by the Senate. It required that

each basin board be composed of at least three members, in-

cluding at least one member from each county included in

the basin. Section 373.0693(2) and (4), Florida Statutes.

It adopted a list of functions for which basin board funds

would be spent; it tracked, almost in its entirety, the

functions listed in Section 7(2) of 61-191 and significantly

enlarged upon three of those functions:



8











(1) Payment was authorized for "real property interests"
rather than only for "rights of way";

(2) Payment for "administrative and regulatory activities
of the basin" was authorized rather than only for
"administrative activities of the basin water management
board";

(3) "Engineering studies of works of the basin" were
authorized rather than only for "primary works of
the basin".

Chapter 73-190 also provided for basin taxes, now codified

in Section 373.0697, Florida Statutes. It stated:

"The respective basins may, upon approval of the electors
in such basin pursuant to 9 (b), Article VII of the consti-
tution of this state, by resolution request the governing
board of the district to levy ad valorem taxes within
such basin. Upon receipt of such request a basin tax
levy shall be made by the governing board of the district
to finance basin functions enumerated in paragraph (11)
above". (Emphasis added)

It is especially significant that the mandatory language

of Section 373.0697 was originally adopted within the context

of proposed basin budgets and tax levies carrying the "approval

of the electors" in the basins. To construe this statute,

as Appellants desire, to confer upon an appointed governing

board discretion to overturn a vote of the basin electorate
defies credulity. In spite of language of "requesting"

inclusion in the district budget, the legislative intent

addressed approval by the electorate, pro forma inclusion

in the district budget and pro forma levying of basin taxes.

The subsequent removal of the requirement for electoral approval,

following adoption of Section 9, Article VII of the Constitution



9











of Florida, did notinspire the legislature to amend the mandatory

language contained in this statute.

In 1976, following adoption of Section 9, Article VII

of the Florida Constitution, which limits the levying of

ad valorem taxes to a maximum of 1 mill by water management

districts other than the Northwest Florida Water Management

District, the legislature adopted Section 373.503(1)(c),

Florida Statutes. That subsection provides, in part, for

an allocation between governing boards and basin boards of

authorized millage levies. Specifically, it provides for

a 25%-75% split between governing boards and basin boards,

with the larger share authorized for basin purposes.

In 1984, the Florida Legislature repealed major portions

of Chapter 61-691, the act that had created SWFWMD and most

of its basin boards in 1961. More specifically, a committee

substitute for Senate Bills 1040 and 788 (1984 bill) provided

for the repeal of Sections 5, 6, 8, 9 and 7(2) of the 1961

Act. The 1984 legislation was promoted by Doug Stowall,

lobbyist for SWFWMD. The controversial portion was apparently

drafted by SWFWMD's General Counsel. Tr./BBC 12.

In a memorandum dated April 11, 1984 (Appendix I) to the

Senate Natural Resources Committee and the House Natural

Resources Committee, Mr. Stowall stated in his opening para-

graph, "These proposed changes are intended to be house-

keeping or corrective in nature".




10











The same theme is echoed in official legislative documents

as the 1984 Act negotiated its way through the legislature.

The Senate staff analysis of the 1984 legislation (Appendix G)

states on page 2 that, "Section 11 repeals portions of Chapter

61-691, Laws of Florida, relating to basins within the South-

west Florida Water Management District which are inconsistent

with Chapter 373, F.S.". Although the House Committee on

Natural Resouces approved a similar bill (PCB 84-12 on April

16, 1984), at the urging of Mr. Stowall, the House Natural

Resources Committee took up the Senate version of the bill

and adopted it. Lobbyist Stowall explained the provisions

of the Senate bill in a memo to Representatives Jon Mills

and Chuck Smith dated May 29, 1984. (Appendix J). The 1984

legislation passed the House of Representatives on May 31,

1984.

In the June 15 issue of the Florida Administrative Weekly,

SWFWMD announced a special meeting of its governing board

to consider "FY 1985 budget status, wetlands program and

Basin Board Concept". In order for the notice to appear

in the June 15 issue, it was necessary for the announce-

ment to be filed with the Secretary of State's office in

Tallahassee no later than noon, June 8, 1984.

Because of what was called a "secretarial slip-up", none

of the basin board members received written notification

of the June 20 meeting. (Appendix K). Those basin board



11











members who were also on the mailing list for governing board

matters likewise did not receive written notification. Id.

The meeting was scheduled in downtown Tampa, Florida, in

a building where the governing board has seldom, if ever,

met before. (Appendix K ). One basin board member, vice

chairman of the Hillsborough River Basin Board, learned of

the meeting "through the grapevine" and on the evening of

June 18, 1984, called the district's General Counsel at home

to inquire about the purpose of the June 20 meeting. She

was advised that there was nothing on the agenda of special

importance or particular interest to her, although in fact

the proposal at that time called for abolishing all the basin

boards. (Appendix L ).

At the June 20 meeting, Gary Kuhl, executive director

of the district, presented a recommendation calling for abolishment

of basin boards and the levying of ad valorem taxes for the
(Appendix B)
district alone in FY-1985.A Tor the reasons stated above,

the meeting was poorly attended; the few comments that were

received at that time spoke in opposition to that proposal.

One basin board member Ms. Martha Kjeer of the Alafia Basin

Board, inquired specifically about the legal authority of

the district to abolish basin boards in view of Chapter 61-

691. She directed the question at counsel for the district.

General Counsel remained silent regarding the very recent

changes to 61-691 which he himself had apparently drafted.4/
4/ Walker would later tell her he "thought she knew"
about the 61-691 Selective repeal.



12











Ms. Kjeer was advised that legal staff for the district would

draft an opinion on the matter if they had sufficient time

with all of their other responsibilities. (Appendix K)

On July 5, another meeting was held in Tampa; the agenda

for this meeting was described as the same three items as

the June 20 meeting; however, this meeting was attended

by a standing-room-only crowd. Several members of the state

legislature were in attendance and spoke in opposition to

the proposal. They were particularly critical of the methods,
less than candid
generally described as by which SWFWMD had persuaded

the legislature to repeal portions of 61-691 that related

to basin boards. Legislators attending that meeting included

Senator Pat Frank, Representative Spud ClementS, Representa-

tive Mary Figg, Representative Fred Jones, Representative

Vernon Peeples, Representative Chuck Smith and Representative

Larry Shackelford.

Although the Basin Board Concept had been agendaed for

action on that date, the governing board declined to resolve

the matter. The board voted instead to postpone action until

its regular meeting in Brooksville the following week.

On July 11, 1984, the board held its regular meeting in

the morning and reconvened to discuss "the Basin Board Concept"

after lunch. Representatives of a number of local governments

spoke or presented resolutions from their legislative bodies

in opposition to the proposed restructuring of the basin

boards. These included the City of Punta Gorda, Hillsborough




13











County, Polk County, DeSoto County, Hardee County, Pasco

County and Manatee County. Speaking in opposition were many

of the same state legislators, as well as additional legis-

lators,5/ than had attended the July 5 meeting. The hearing

continued for three to four hours. Not a single voice was

raised to favor the proposal. (Tr./BBC 105,109-110)

Ultimately, the governing board adopted a motion calling

for the "restructuring of basin board budgets in strict

conformance with Section 373.0695". Upon a specific question

from the audience, Mrs. Kumpe, the board member who made

the motion, stated that she intended the motion to approve

the staff recommendation. Explication of the term "strict

conformance" with Section 373.0695 was not included in the

motion.

The motion was adopted 6-3. Soon thereafter, the hearing

was adjourned. Following a short recess, the board reconvened

for a hearing to adopt tentative millage rates for certification

to property appraisers in sixteen counties. At that meeting,

reduced millage rates for each of the basin boards were adopted.

Conversely, a much higher millage rate for the district was

adopted in order to fund, at least tentatively, some of the

projects which had been stricken from the basin board budgets.


5/ Legislators who attended the July 11 meeting or sent
delegates to speak for them in opposition to the proposal
included: Senator Pat Frank, Representative Fred Jones,
Senator Bob Crawford, Representative Chuck Smith, Senator
Karen Thurman, Representative Rick Dantzler, Representative
Mary Figg, Representative Locke (spoken for by Sen. Thurman),
Representatives Kelly, Tavares, Johnson and Shackelford
(spoken for by Representative Chuck Smith).


14










PART A

I. THE PRELIMINARY INJUNCTION WAS PROPERLY ISSUED.


"The purpose of a preliminary injunction is merely
to preserve the relative positions of the parties
until a trial on the merits can be held. Given this
limited purpose, and given the haste that is often
necessary if those positions are to be preserved,
a preliminary injunction is customarily granted on
the basis of procedures that are less formal and
evidence that is less complete than in a trial on
the merits. A party thus is not required to prove
his case in full at a preliminary injunction hearing.
(Citations omitted), and the findings of fact and
conclusions of law made by a court granting a pre-
liminary injunction are not binding at trial on
the merits, (citations omitted)." University of
Texas, et al v. Camenish, 51 U.S. 390, 68 L.ed 2d
175, 101 S.Ct. 1830 25 CCH EPD P 31725 (U.S. 1981)
at 395.

In the case at bar, much haste proceeded and surrounded the

emergency hearing of July 31, 1984. Both the circuit judge

and the parties were faced with severe time constraints;

in fact, a significant amount of legal argument that day

focused upon the deadline for filing proposed millage rates

for TRIM notices, i.e., whether the deadline had been mid-

night the night before or would be midnight that night.

Tr./C.Court 22-26.

The judge had before him a complaint filed by three counties;

one basin board, a major agricultural organization; four

officers of basin boards; a total of nine basin board members;

two former members of the governing board, including the

former chairman of that board for 11 years; and several other

private citizens. It was a sound and reasonable exercise

of judicial discretion to recognize that such parties do

not bring false or frivilous claims to court. It was also

a sound and reasonable exercise of judicial discretion to

15










take cognizance of the fact that Defendants did not dispute

any of the facts stated in the Petition. 6
The July 31 hearing was called on an emergency basis

specifically to determine whether or not a temporary injunction

would issue. Judge Booth stated in his opening remarks that

no other argument would be heard that day. Tr./C.Court 5-6, 11.

He declined to hear stipulations and testimony preferred

by Plaintiffs regarding the facts surrounding the July 11 decision

and regarding the irreparable injury that was threatened.

Tr./C.Court 11,12. He declined to rule on Defendants' Motion

to Dismiss, reserving all issues other than that regarding

the temporary injunction for future determination. Tr./C.Court

11. He specifically included in his Order the statement

that the Court reserved ruling on all pending motions and

other matters. Record 2 (It should be noted, however,

that Defendants' Motion to Strike and Motion to Dismiss were

never properly served on three of the four attorneys representing

Plaintiffs. The motions were hand-delivered to Bruce Snow

on July 30; one of the other attorneys received a copy about

15 minutes before the hearing; the other two attorneys received

copies of the motions in the courtroom itself).

Defendants have objected repeatedly that the Petition

itself was unverified on July 31. It was, however, subsequently

verified by affidavit (Record 3 ) although such verification

is no longer necessary. See 25 Fla Jur Pleadings Section


6/ Nor have they disputed any of those facts since
the hearing.



16











97 and 29 Fla Jur 2d Injunctions Section 74. Even if

verification of the Petition were still a technical requirement,

in view of the witnesses in the courtroom that day prepared

to give testimony, in view of the subsequent verification

of the Petition, and particularly in view of Defendants'

failure to object or deny any of the facts stated in the

Petition and, even more particularly, Defendants' implicit

admission to those facts in oral arguments on July 31, (TR./C.Court

16, 18 and 19-22) such a technical oversight should be properly

disregarded by a court of equity. One of the maxims of equity

is that equity regards the substance rather than the form.

Pierce v. Scott, 142 Fla 581, 195 So. 160 (1940); Bruce's

Juices, Inc. v. King, 61 So.2d 175 (Fla.1952); Miller v.

Duke, 155 So.2d 627 (1st DCA 1963). Equity, it is said,

looks to the substance rather than the shadow, to justice

rather than technicality. Schupler v. Eastern Mortgage Co.,

160 Fla 72, 33 So.2d 586 (1948) and Coleman v. Coleman, 191

So.2d 460 (1st DCA 1966). These equitable principals have

been held to apply with particular force to procedural matters,

Schupler supra; Colburn v. Highland Realty Co., 153 So.2d

731 (2nd DCA 1963), for equity is not bound by rigid rules

of practice. Gill v. Smith, 117 Fla 176, 157 So. 657 (1934)

and 22 Fla Jur 2d "Equity" at Section 8.

Plaintiffs' Petition sought a temporary injunction requiring

SWFWMD to notify all property appraisers in the sixteen counties

encompassed by SWFWMD, for purposes of Truth in Millage (TRIM)

notices, of proposed millage rates identified with the basin




17












board budgets adopted by the respective basin boards prior

to their gutting by the governing board.

The Petition noted the requirements of Section 200.065,

Florida Statutes, requiring that these proposed millage rates be

certified to the property appraisers no later than (as calcu-

lated by the Petitioners) July 31. Defendants argued that

the deadline for TRIM certification was July 30. Tr./C.Court 22-26

Petitioners also noted that adoption of a final budget and

millage rate higher than that rate published in TRIM notices

could not be adopted and levied without triggering statutory

sanctions,specifically individual notice by first-class mail

to all affected taxpayers. The judge was entitled to take

judicial notice of the statute.

Facts given in the Petition itself, combined with the

fact that Defendants did not dispute any of those facts,

combined with the facts admitted by Defendants in oral argument,

together with a plain reading of the statutes cited in pleadings

and in oral argument (of which the judge was entitled to

take judicial notice), support judicial findings that the

five requirements for the issuance of temporary injunction

had been established:-7
1. Lack of injury to Defendants if temporary injunction
were issued.

Performance by Defendants of the requested temporary

relief, i.e., certification of higher basin millage rates

to property appraisers, for purposes of TRIM notices,


7/ Wilson v. Sandstrom, 317 So.2d 732 (Fla. 1975) cert
denied 423 U.S. 1053, 46 L.Ed 2d 642, 96 S.Ct. 782.
See also 29 Fla Jur 2d Injunctions Section 9.

18











necessitated the mailing and postage costs associated with

sixteen letters. That was the only cost to SWFWMD resulting

from the temporary injunction. The court below recognized

this less-than-de-minimis injury to Defendants.

The court was also entitled to recognize the absence

of possible future injury to Defendants, in the context of

the temporary injunction, when a final determination on the

merits was rendered. If, upon final hearing, the court ruled

in favor of the governing board's authority to gut basin

board budgets, then publication of higher TRIM rates would

have been an unnecessary but inexpensive precaution; Defendants

would have been neither helped nor hurt by the temporary

injunction. If, however, upon final hearing, the Plaintiffs

prevailed, then the temporary injunction would operate to

prevent injury to Defendants (and to taxpayers in sixteen

counties) because the statutory sanction imposed by Section

200.065 for the levying of taxes higher than those published

in TRIM notices would not be triggered; the preliminary

injunction would, under those circumstances, protect Appellants

from incurring substantial costs.

















19











2. Irreparable injury to Plaintiffs if temporary injunction
were not issued.

As noted immediately above, Section 200.065, Florida

Statutes, imposes a substantial statutory sanction for levying

taxes greater than those published in TRIM notices. It necessarily

follows that, in the case at bar, refusal to issue a temporary

injunction requiring the district to certify higher millage

rates to property appraisers for TRIM notice purposeswould

foreclose, as a practical matter, the options open to the

courts and the Plaintiffs; a subsequent final decision requiring

the adoption of higher millage rates to support basin budgets

could be reached,absent the preliminary injunction, only

by requiring the expenditure of hundreds of thousands of

tax dollars to notify by first-class mail every property

owner in sixteen counties.

Defendants argued that this statutory sanction would have

operated to the injury of the district, not the Plaintiffs.

Does anyone doubt that such a cost factor would have consti-

tuted a major element in subsequent litigation? Does anyone

doubt that such potential expenditure of tax dollars by

the district would have posed a prominent consideration in

subsequent evaluation of potential injury to the Defendants

and in determination of the public interest? Does anyone

doubt that such a factor would have weighed heavily to the detriment

of the Plaintiffs?

3. The Public Interest served by the temporary injunction.

In view of the statutory sanction described above, a


20











determination of the public interest in the decision to issue

a temporary injunction is facially obvious. A temporary

injunction resulting in higher proposed millage rates for

TRIM notice purposes left all options open to both the courts

and the governing board. All options remained open without

penalty. The converse, however, was not true; refusal to

issue a temporary injunction that would require publication

of higher rates on TRIM notices could result in the expendi-

ture of hundreds of thousands of tax dollars in order to pro-

vide later individual notice of higher taxes to each

affected taxpayer. The public interest clearly was served

by the issuance of the temporary injunction requiring the

certification of higher TRIM millage rates to property appraisers

and thus precluding possible expenditure of large sums of

public monies needlessly.

4. Petitioners had a clear legal right to the relief.

Petitioners included the Northwest Hillsborough Basin

Board; nine basin board members, including four basin board

officers; three counties; an agricultural trade association;

and various taxpayers in SWFWMDrs jurisdiction. They each

had a clearly discernible legal interest in the continuation

of basin boards as viable governmental entities.

The interest of the Northwest Hillsborough Basin Board

itself and of the officers and members of various basin boards

in the integrity of basin board budgets and the budgetary

process is too evident to admit of dispute.

The interest of the counties in the continued viability

of basin boards derives from the statutorily-guaranteed

21











representation of each included county on basin boards,

(Section 373.0693(2), Florida Statutes) contrasted with the

statutorily guaranteed non-representation of a majority of

counties on the governing board (supra, page 5). The counties'

legal interest is also grounded in the authority granted

to and exercised by basin boards to provide water supply

assistance to "counties, municipalities and regional water

supply authorities". The counties' interest is also grounded

in a multiplicity of particular basin board projects (including

development of wilderness parks; purchase of ecologically-

sensitive lands; and aerial mapping for preparation of flood-

plan delineation) which involve joint coordination, planning

and/or funding with county governments.

The legal interests of taxpayer-petitioners parallels,

to some extent, but also extends beyond that of the counties.

Like the counties, the taxpayers have a legally-recognizable

interest in the continued viable existence of basin boards

on which they have representation. Taxpayers have a consti-

tutional interest in the non-transfer of taxing capabilities

to a board on which they are not represented and on which,

for many of them, there is no opportunity for representation.

For such taxpayers, the legal interest in the basin boards

derives directly from Equal Protection and Due Process rights

grounded in both the Constitution of Florida and the Consti-

tution of the United States. Amendment XIV, U.S. Constitution

and Sections 2 and 9, Article I, Constitution of Florida.

22











As shown on the Petition (Record 1), Florida Citrus Mutual's

interest in the basin boards and their budgets closely parallels

the interest of taxpayers described above. Florida Citrus

Mutual is itself a taxpayer in Polk County. Florida Citrus

Mutual represents several thousand citrus growers, many of

whom own/operate groves within SWFWMD's jurisdiction, who

are by definition payers of ad valorem taxes. Mutual is

entitled to represent the interests of its members. See

Florida Home Builders Assn. v. Department of Labor, 412 So.

2d 351 (Fla 1982).

5. Petitioners had no adequate remedy at law.

In their Petition, Plaintiffs/Appellees pleaded no adequate

remedy at law because time was of the essence. Petitioners

noted the statutory sanction (Section 200.065(2) (d)) imposed

by certifying a TRIM millage rate lower than the millage

rate later and finally adopted and pleaded that "the enormous

expense required by such individual notices (to taxpayers)

precludes this as a practical alternative". The only judicial

relief for providing the timely affirmative action prayed

for could only be granted by a court of equity.

The judge below noted the necessity that mandatory injunction

preserve the status quo. See Bowling v. National Convoy

and Trucking Company, 101 Fla 634, 135 So. 541 (Fla 1931).

In the case at bar, the record presents an ample basis for

finding that the July 31 preliminary injunction preserved

the status quo and maintained the relative positions of the

parties.


23











In Bowling, supra, the Florida Supreme Court quoted at

length from High on Injunctions:

"Since the object of a preliminary injunction-is to preserve
the status quo, the court will not grant such an order
where its effect would be to change the status. Thus,
where the plaintiff seeks to enjoin the defendant from
interfering with acts about to be done by the plaintiff
againstthe objection of the defendant, a preliminary in-
junction restraining such interference is erroneous since
its effect is to destroy the existing condition of the
subject-matter of the suit by permitting the doing of
affirmative acts by the plaintiff in advance of the final
determination of his right to do them. And in such case
the court may compel the plaintiff who, after having tied
defendant's hands, has thus changed the status of affairs,
to restore them to the same condition in which they were
before the injunction was granted. And, by the status
quo which will be preserved by preliminary injunction
is meant the last actual, peaceable, noncontested condition
which preceded the pending controversy, and equity will
not permit a wrongdoer to shelter himself behind a suddenly
and secretly changed status, although he succeeded in
making the change before the hand of the chancellor has
actually reached him. And where, before the granting
of the injunction, the defendant has thus changed the
condition of things, the court may not only restrain further
action by him, but may also, by preliminary mandatory
injunction, compel him to restore the subject-matter of
the suit to its former condition. And in so doing, the
court acts without any regard to the ultimate merits of
the controversy!'. Id. at 544

In the Bowling decision, the Florida Supreme Court noted

that the Defendant had suddenly and secretly changed the

relationship between the parties; a preliminary mandatory

injunction was properly in order to restore the parties to

their relative position until a final determination of rights

could be determined by a court of equity.

In Price v. Gordon, 129 Fla 715, 177 So. 276 (Fla 1937),

the Court similarly found that a preliminary mandatory injunction

was in order to command a landlord to give tenants access

to their personalty locked up by him when they protested



24











the living conditions in the house. In Wilson v. Standstrom,

supra, the Florida Supreme Court affirmed the issuance of

a preliminary mandatory injunction requiring kennel owners

who had previously furnished greyhounds to the racetrack

to continue doing so when their threats to boycott the

track in violation of their contracts threatened to upset

the status quo.

The pattern discernible in the cases above, deemed by

the courts to have upset or threatened to upset the status

quo and, hence, to have justified issuance of a mandatory

injunction to restore the status quo is likewise discernible

in this case. For more than a decade, at least, basin boards

had performed a multiplicity of functions, had included those

functions in their budgets, and had seen their budgets and

accompanying millage rates incorporated/levied without signifi-

cant controversy. The allocation of costs for certain of

these functions between basin boards and the governing board

was the subject of a written SWFWMD policy signed by the

governing board chairman. (Appendix M )

Even in June, 1984 while the basin boards were considering

and adopting tentative budgets there was no hint of a changed

relationship. The staff that would soon decide that most

basin board proposed expenditures were not authorized was,

in mid-June, helping those basin boards to formulate their

budgets; to allocate costs; to compute proposed millage rates.

They did so without a hint of the "modified" proposal that

on July 11 would gut those same budgets. The governing


25










board action on July 11 was so precipitous that even two

members of the governing board stated they had no knowledge

of the plan until walking into the meeting. Tr./BBC 119-120.

The action taken on July 11 clearly and radically upset

the status quo between the basin boards and the governing

board. The change was effected with great suddeness,

and it was accomplished through procedures that, at a minimum,

bordered on the secretive.

In conclusion, the record below contains the evidence

as evaluated through relaxed procedural evidentiary criteria

approved by the U.S. Supreme Court in the University of Texas,

supra, to support the findings that the temporary injunction

rendered on July 31, 1984 prevented irreparable injury to

the Plaintiffs ;did not cause injury to the Defendants; supported

the public interest; and was issued to Petitioners who had

a clear legal right but no adequate remedy at law. The

injunction represented a sound, reasonable exercise of judicial

discretion and is entitled to a presumption of correctness.

Hidden Harbour Estates, Inc., v. Basso, 393 So.2d 637

(4th DCA 1981). As the Third District Court of Appeal in

a more recent case noted:

"Wide discretion rests in the trial court in granting,
denying or modifying injunctions. An appellate court
will not interfere with the exercise of this discretion
unless some abuse thereof is clearly made to appear, or
unless the trial court's ruling is clearly improper.
A presumption exists as to the correctness of the ruling
of the trial court, and the burden is on the Appellant
to make error appear." Duvallone v. Duvallone, 409 So.
2d 1163 (3rd DCA 1982).

The Duvallone decision was cited with approval by the

Fourth District Court of Appeal in 1983; that sister court

26











went on to describe Appellants' burden to demonstrate error

in the trial court's decision regarding a temporary injunction

as a "heavy burden". Reinhold Construction, Inc. v. City

Council of Vero Beach, 429 So.2d 600 (4th DCA 1983).

In Sadowski v. Shevin, the Third District Court of Appeal

noted the "wide discretion" that a trial court possesses

in denying or granting injunctions; an appellate court, the

Court said, will not interfere where abuse of discretion

has not been made to appear. 351 So.2d 44 (3rd DCA 1976).

The Florida Supreme Court back in 1939 reached the same

conclusion in Wells v. Cochrane, 188 So. 87 (Fla 1939). The

Court held:

"Counsel for appellees contend that the decree denying
the temporary injunction should be affirmed for two reasons:
(1) that the granting of a temporary injunction rests
largely in the sound judicial discretion of the trial
court, to be governed by the circumstances of each case;
and that a presumption exists as to the correctness of
the ruling of the lower court and an abuse of the discretion
with which the trial court is clothed has not on this
record been shown to have occurred by refusing or denying
the temporary restraining order. We agree to this contention.
See McMullen v. County of Pinellas, 90 Fla. 398, 106 So.
73; Savage v. Parker, 53 Fla. 1002, 43 So. 507; Gillis
v. State Live Stock Sanitary Board, 94 Fla. 890, 114 So.
509; Builders Supply Co. v. Acton, 56 Fla. 756, 47 So.
822; Holt V. DeLoach-Edwards Co., 56 Fla. 902, 48 So.
1039; Allen v. Hawley, 6 Fla. 142, 63 Am. Dec. 198; McKinne
v. Dickenson, 24 Fla. 366, 5 So. 34; Taylor v. Florida
East Coast R. Co., 54 Fla. 635, 45 So. 574, 16 L.R.A.,
N.S., 307, 127 Am.St.Rep, 155, 14 Ann.Cas. 472; Viser
v. Willard, 60 Fla. 395, 53 So. 501; Linton v. Denham,
6 Fla. 533." Id. 87








27










PART A

II. THE PROPRIETY OR LACK THEREOF OF THE TEMPORARY
INJUNCTION IS NOW MOOT.


The Order of July 31 contained seven parts. Paragraphs

numbered 1, 5, 6 and 7 which relate to continued jurisdiction

of the court, the holding of a prompt hearing to resolve

the merits, an amendment to reflect counties rather than

county commissions as Plaintiffs are beyond dispute. Paragraph

3 declares that property appraisers in sixteen counties are

to be named parties to the suit. The authority of the circuit

judge to join these parties is expressly articulated in Rule

1.250(c), Florida Rules of Civil Procedure.

Paragraph 4 provides that no funds in excess of those

approved for basin board budgets by the governing board are

to be expended prior to a final judicial determination of

the litigation. The propriety of that element of the Order

is similarly undisputed. The interests of Defendants in

this action are protected by that element of the July 31

Order.

That leaves only paragraph 2 of the Order to constitute

the basis of this appeal. That paragraph states:

"That the Defendants, Gary W. Kuhl, as Executive Director
of the Southwest Florida Water Management District and
the Governing Board of the Southwest Florida Water
Management District, shall within seven (7) days notify
the property appraisers of Levy, Lake, Sumter, Citrus,
Hernando, Pasco, Polk, Hardee, DeSoto, Hillsborough, Manatee,
Sarasota, Charlotte, Highlands, Pinellas and Marion
Counties as to the millage or amount of millage required
to raise sufficient funds to meet the 1984-85 tentative
budget request of each of the basin boards within the
District."


28











On August 3, 1984, in compliance with the Order, the SWFWMD

staff notified property appraisers in all sixteen counties

of the higher millage rates as required by this Order.

(Appendix N). Property appraisers in all sixteen counties

have prepared and mailed the TRIMnotices based upon the
8/
court-ordered millage rates.8 The vast majority of TRIM

notices were mailed before the end of August. There is no

possible action, even if it were desirable, that Defendants

can now take to withdraw or retrieve the certification of

the higher millage rates that they delivered on August 3;

nor, is there any way that the effect of those higher TRIM

notices can be abated or reversed.

Regardless of a judicial determination that the mandatory

injunction was properly or improperly issued, there will

be no practical resultant effect. The issue has indeed become

moot.

It would be entirely appropriate under the circumstances

of the case at bar for this Court to hold that the appeal

of the interlocutory Order of July 31 has been rendered moot

by the passage of time. Such a decision would not be unprece-

dented. As far back as 1917, the Florida Supreme Court in

McKeown v. Evans, 73 Fla. 34, 73 So. 841, held as moot


8/ The Pinellas County property appraiser, who mailed TRIM
notices in early August, obtained leave of the Court to
use the lower basin millage rate because of particular
individual circumstances in that county.





29











an appeal from an interlocutory denial of a preliminary

injunction. The contracts that were the subject of the

requested injunction had been performed and payment under

those contracts had been made. Thus, the Florida Supreme

Court said, "if an injunction should have been granted,

it would now be ineffectual".

The Florida Supreme Court visited the same question in

a slightly different factual context in McCormick v. Bond,

75 Fla. 819, S. 681 (Fla. 1918). Again, an injunction

regarding a government contract had been sought. Citing

to McKeown v. Evans, supra, the state supreme court noted

that "the time covered by the contract had, therefore,

expired and nothing can be accomplished by the suit(".

The Second District Court of Appeal cited with approval

to the McCormick decision, supra, in deciding a matter relating

to the validity of certain ballots cast in a Clermont mayoralty

election. Upon questioning by the Court at oral argument,

it was determined that the term of office from the disputed

election had expired ten days earlier. The court held:

"It became apparent to the Court that no relief could
be afforded the appellant if this Court should reverse
the lower court on a question of law, it would be useless
to do so. It is, therefore, the order of the court that
the appeal in this case be dismissed as the subject
matter is now moot. See DeHoff v. Imeson, 153 Fla. 553,
15 So.2d 258; McCormick v. Bond, 75 Fla. 819, 78 So. 681;
DuBose v. Meister, 92 Fla. 995, 110 So. 546."
Bliven v. Turville, 100 So.2d 91 (2nd DCA 1958) at 92.





30












PART B

I. THE MOTION ADOPTED BY THE GOVERNING BOARD ON JULY
11, 1984, CONSTITUTED RULE ADOPTION IN VIOLATION
OF THE REQUIREMENTS OF CHAPTER 120.


Although the action taken by the governing board on July

11 ultimately found expression in particular millage rates,

the action itself spoke to a policy decision of enormous

magnitude, a policy reaching to the fundamental governmental

framework for management of the water resources in sixteen

counties of west-central Florida. It was, in fact, a poorly

disguised effort to virtually destroy the basin boards created

by the legislature in Chapter 61-691, Laws of Florida, and

in Section 373.0693(7), Florida Statutes.

The proposal adopted by the governing board represented,

as admitted by General Counsel for SWFWMD that day (Tr./BBC

102), a "modification" of the earlier proposal to abolish

the basin boards and transfer their ad valorem taxing capa-

bilities to the governing board. The motion adopted on July

11 called for restructuring of basin budgets "in strict conformance"

with Section 373.0695, Florida Statutes". Tr./BBC 105. The

unarticulated presumption of the motion was that projects

deemed by SWFWMD General Counsel not be in strict conformance

with the statute were to be removed from the basin board

budgets and a policy adopted that would preclude such projects

in the future. The record is devoid of any explication to

either the governing board or the public of the standards

or criteria utilized by the governing board to determine



31











which projects were or were not "in strict conformance".

The motion was described by one governing board member
9/
(who is also a member of the Florida Bar)- as "an artful

job". Tr./BBC 118. Another governing board member

described it as being"like motherhood and patriotism".

Tr./BBC 108.

The action taken did, in fact, constitute a rule as

defined in Section 120.52(15), Florida Statutes:

"Rule means each agency statement of general applicability
that implements, interprets, or prescribes law or policy
or describes the organization, procedure, or practice
requirements of an agency and includes any form which
imposes any requirement or solicits any information not
specifically required by statutes or by an existing rule.
The term also includes the amendment or repeal of a rule.
The term does not include .(c) the preparation or
modification of: Agency budgets. .".

Two questions necessarily present themselves: Did the

action taken by the governing board on July 11, 1984 constitute

a "rule" as defined above and, did the action fall within

the penumbra of the exception noted in (c)?

Very clearly, the motion was an agency statement. Very

clearly also, it was one of general applicability, a decision

affecting the taxpayers in sixteen counties of Florida and

a decision affecting the power to tax and spend for the

protection of the water resources in that entire area of

Florida. Very clearly, too, it prescribed, implemented and

interpreted law and policy.


9/ The governing board member making the motion admitted
that it had been provided her by the SWFWMD legal staff.


32











The courts have traditionally given the statutory definition

of "rule" a broad application. In Department of Administration

v. Stevens, 344 So.2d 290 (1st DCA 1977), the court held

that departmental directives and guidelines setting up procedures

for bumping employees under certain circumstances were agency

policy statements of general applicability with the force

of rule of law. Since not legally adopted as rules under

the Administrative Procedure Act, they were void and of no

effect. A directive of the Florida Real Estate Commission

regarding the order in which a broker's individual name and

that of his franchise would be published was also held to

be an agency statement of general applicability and, hence,

a rule. Harris v. Florida Real Estate Commisson, 358 So.2d

1123 (1st DCA 1978). Similarly, a declaratory statement

of a division director rescinding a prior interpretation

given to a rule, was itself a rule, the First District Court

of Appeal held in Price Wise Buying Group v. Nuzum, 343 So.2d

115 (1st DCA 1977). The Third District Court of Appeal held

in 1981 that an agency application of a statute in a way that

was not readily apparent from the statute itself constitutes

a rule; since it was adopted in violation of required statutory

procedures, it was of no effect. Gulfstream Park Racing

Association v. Division of Pari-Mutual Wagering, 407 So.2d

263 (3rd DCA 1981).

Particularly analogous to the case at bar is Department

of Revenue v. U.S. Sugar Corp., 388 So.2d 596 (1st DCA 1980).




33











The Court in that case held that an agency attempt to make

distinctions between "common carrier" and "contract carrier"

for purposes of applying statutory provisions regarding taxa-

bility constituted rulemaking and, as such, was subject to

the procedural requirements of Chapter 120.

Another similar case, although analogous in a different

fashion, is State Department of Administration v. Harvey,

356 So.2d 323 (1st DCA 1977). The court there held that

a rule by any other name is still a rule. See also General

Development Corporation v. Division of State Planning, Department
of Administration, 353 So.2d 1199 (1st DCA 1978);McDonald

v. Department of Banking & Finance, 346 So.2d 569 (1st DCA

1977) and Public Service Commission v. Indiantown Telephone

System, Inc., 435 So.2d 892 (1st DCA 1983).

The action also represented a reversal of existing policy.

See Department of Revenue v. U.S. Sugar Corp., supra. Policy

211-007 issued and signed by Bruce Samson, the chairman of

the governing board (Appendix M ) in 1980 specifically

recognized the inclusion in basin board budgets of many projects

such as those which were deleted on July 11, 1984 ostensibly

for lack of authorization under Section 373.0695, Florida

Statutes. The same written policy --- which acknowledged

that an unwritten policy had existed for some time --- had

provided for allocation of project costs between basin boards

and the governing board and among different basin boards.

Many of these types of projects had been carried in basin



34











board budgets for more than a decade. Audit reports of the

Auditor General dating back to 1973, at least, reflect the

inclusion of such projects as topographic mapping and land

acquisition in the basin board budgets and contain no criticism

of that inclusion. (Appendix 0). See also letter from

Don Feaster, former executive director of SWFWMD (AppendixP ).

It must be shown, of course, that the action taken not

only fits within the statutory definition of "rule", but

also that it does not fit within the listed exception. More

particularly, could the July 11 action be characterized as

"preparation and modification of the agency budget" referenced

in Section 120.52(15) (c) (1), Florida Statutes?

The word "modification" is defined by the American

Heritage Dictionary as:

"A small alteration, adjustment or limitation".

The governing board motion of July 11 resulted in an

87% reduction in three basin board budgets and great reductions

in all other basin board budgets. Such action, on its face,

does not fit within the definition of "modification"; it

is not a "small alteration or adjustment or limitation".

It should be noted also that the July 11 Basin Board Concept

hearing did not directly address any budget, basin or district.

At that meeting, Chairman Samson specifically stated that

adoption of the "strict conformance motion" (the subject

of this suit) would not mean tentative approval of any

particular budget, that that would require a separate motion.

Tr./BBC 108. Both Ms. Kumpe and Mr. Zagorac stated that

board adoption of Ms. Kumpe's "strict

35











conformance motion" did not mean approval of the budgetary

figures presented by staff that day. Tr./BBC 122.

The July 11 action represented the culmination of a series

of activities. The earlier proposals on the "Basin Board

Concept" had overtly called for the abolishment of basin

boards and the concentration of millage capabilities in the

governing board. On June 20 and July 5, the governing board

had considered these proposals under the agenda label, "The

Basin Board Concept". At the July 5 meeting, the board had

voted to postpone action until July 11, 1984. At the July

meeting, the agenda item was again labeled, "Basin Board

Concept:.

The July 11 proposal which gained governing board approval

that date, was described by district General Counsel as a

"modification" of the earlier proposal. Tr./BBC 102. The

proposal was no longer to abolish basin boards; it was only

to gut their budgets. Three of the budgets, for instance,

were each reduced by 87%; another was reduced by 85%; another

by 60%. To now characterize that action as a "modification"

of the budget --- defined by the American Heritage Dictionary

as "a small alteration, adjustment or limitation" --- would

mock the English language.

Finally, it is necessary to review the public policy

consequences of a claim that the July 11 action was a mere

budgetary "modification". The motion was to include in basin

board budgets only those items that were "in strict conformance"

with Section 373.0695, Florida Statutes. It was understood


36










that "strict compliance" meant those projects that the General

Counsel deemed to be in strict compliance. To hold that

a policy adopted by a public agency of such enormous substantive

impact, a policy granting enormous discretion to one of its

officers, is not a rule and, therefore, is exempt from the

requirements of Chapter 120 by virtue solely of the fact

that the rule was couched in financial expressions would make

a mockery in many circumstances of the Administrative Procedure

Act. It would render it, in large part, nugatory. It would

necessarily create a convenient vehicle for evasion of the

intent of the Florida Administrative Procedure Act.




























37











PART B

II. THE GOVERNING BOARD ACTION OF JULY 11, 1984,
REPRESENTS A VIOLATION OF SECTION 373.0697,
FLORIDA STATUTES.

Section 373.0697, Florida Stautes, provides as follows:

"Basin Taxes The respective basins may, pursuant to
section 9(b), Article VII of the State Constitution, by
resolution request the governing board of the district
to levy ad valorem taxes within such basin. Upon receipt
of such request, a basin tax levy shall be made by the
governing board of the district to finance basin functions
enumerated in Section 373.0695, notwithstanding the pro-
visions of any other general or special law to the contrary,
and subject to provision of Section 373.503(3)." (emphasis
added)

The use of the word "shall" in the above quoted statute

gives the statute a mandatory connotation. The word "shall"

mandates the action. Fla. Tallow Corp. v. Bryan, 237 So.2d

308 (Fla. App. 1970). See also White v. Means, 287 2d 20

(Fla. App. 1973); Neal v. Bryant, 149 So.2d 529, 97 ALR 2d

819 (Fla. 1962); and McDonald v. Roland, 65 So.2d 12 (Fla.

1953).

It is a maxim of statutory construction that words of

common usage must be construed in their plan and ordinary

sense. Pedersen v. Green, 105 So.2d 1 (Fla. 1958). The

word "shall" carries with it a universally understood meaning.

As defined by Webster's International Dictionary, it means:

"Used to express a command or exhortation; used in laws,
regulations, or directives to express what is mandatory
I1

It must be assumed that the legislature knows the plain

and ordinary meaning of the words of common usage that it






38











chooses to adopt; for instance, when the Third District Court

of Appeal was called upon to construe the word "may" in

Harper v. State, it held that the legislature knew the

plain and ordinary meaning of that word and knew that it

denotes a permissive rather than a mandatory term. 217 So.2d

591 (3rd DCA 1968), writ discharged 224 So.2d 684. See also

Tatzel v. State, 356 So.2d 787 (Fla. 1978).

Although the use of "shall" or "may" provides persuasive

evidence of the intent of the legislature, it is not always

conclusive. The words must also be construed from a reading

of the entire statute. State v. Gale Distributors, Inc.,

349So.2d 150 (Fla. 1977).

Is it possible --- in reading this particular statute

in its entirety and in reading related statutes --- to find

a different, a permissive connotation? Interpretation of

the word "shall" to mean "may" is possible if such a legislative

intent could be fairly read into the context of the statute.

See Gay v. Coral Gables, 47 So.2d 529 (Fla. 1950).

In the Gay decision, the Florida Supreme Court held that

courts were permitted to find a meaning different from the

common connotation of a word if, upon consideration of the

statute as a whole and the subject matter to which it relates,

one is necessarily led to the conclusion that the legislature

intended a different meaning ascribed to its language.




39











In the present context, we are dealing with basin boards

created by the Florida Legislature (Chapter 61-691, Laws

of Florida). Their members have been appointed by the Governor

of Florida, subject to confirmation by the Florida Senate

(Section 373.0693, Florida Statutes). They have been granted

from the legislature itself a broad spectrum of duties. Section

373.0695, Florida Statutes, and Chapter 61-691, Laws of Florida.

One of those duties is the preparation of the annual basin

budget.

Allocation of maximum ad valorem millage assessment between

district governing boards and individual basin boards is

addressed in Section 373.503(3), Florida Statutes. The

statutory allocation provides for a maximum ad valorem millage

assessment for basin purposes of up to 75% of the total authorized

millage. The governing board is allocated by statute the

remaining 25% of the total authorized millage.

No basin taxes are to be levied within the basin "unless

and until the annual budget and required tax levy shall have

been approved by formal action of the basin board". Section

373.0697(1).

It is against this background of statutory provisions

that Section 373.0697 must be construed. There is no statutory

suggestion that SWFWMD's basin boards are mere creatures

of the governing board. There is no statutory suggestion

that they exist or cease to exist at the whim of that governing

board. There is no suggestion that basin board budgets prepared

in conformity with the statutes for purposes authorized by



40











the statutes, properly adopted by basin boards, may be adopted,

rejected or truncated at the caprice of the governing board.

On the contrary, even the district's General Counsel acknowledged

at the July 31 hearing: "We are required to approve your

budget as long as it is consistent with the duties and functions

that the statute sets out for you to do". Tr./BBC 96.

It seems clear that the Florida Legislature, in adopting

the statutory provisions of Chapter 373 relating to basin

boards and particularly with reference to SWFWMD, in adopting

Chapter 61-691, Laws of Florida, intended the creation of

quasi-autonomous boards that would exercise substantial powers

over the water resources within their respective basins.

Construction of Section 373.0697 to mandate the levying of

taxes to support the basin budgets flows inevitably from

such a perception of legislative intent and of the proper

role of basin boards. Construction of 373.0697, on the

other hand, to leave these quasi-autonomous basin boards

at the mercy of the governing board for their life support

system, would posit an inherent contradiction.

A review of the legislative history of Section 373.0697

lends substantial weight to a construction requiring the

governing board to levy basin taxes requested. As adopted

in 1973, this section read:

"The respective basins may, upon approval of the electors
in such basin pursuant to Section 9(b), Art. VII of the
state constitution, by resolution request the governing
board of the district to levy ad valorem taxes within
such basin. Upon receipt of such request, a basin tax
levy shall be made by the governing board of the district
to finance basin functions enumerated in Section 373.0695."


41










An imprint of legislative intent in 1973 is facially obvious.

Having required approval of the electors to levy basin taxes,

the legislature did not subject the decision to the discretion

of an appointed unrepresentative governing board sitting

in another part of the state. The use of the word "request"
in anotherportion I the statute
in another / anno Dce tconsstrtue, as Appellants would choose,

to permit a remote privy council to override the expressed

will of the people.

In 1976, Section 9 of Art. VII, Constitution of Florida,

provided permanent electorate approval for levying of taxes

for water management purposes. Thereafter, the language

requiring voter approval of basin taxes was removed from

Section 373.0697. The legislature, however, did not choose

to remove the language mandating the levying of basin board

taxes: "Upon receipt of such request, a basin tax levy shall

be made. .".

In the same act, Chapter 76-243, Laws of Florida adopted

the 25%-75% split (25% governing board/75% basin boards)

of tax capabilities, (Section 373.503(3)) and tied Section

373.0697 to it. Such an enactment evidences a clear legislative

intent to leave basin boards in at least a quasi-autonomous

posture with substantial powers beyond the reach of the governing

board.

An ancillary question must necessarily be: Did the items

removed from the basin board budgets -- or at least that

were presumed by SWFWMD to come within the ambit of the "strict

conformance" motion -- meet the requirements of the reference


42










statute? Were they among the basin functions enumerated in

Section 373.0695, Florida Statutes?

Assuming arguendo that the governing board is the proper

arbiter of that quasi-judicial determination, we need only

look to the breadth of the duties listed and consider the

duties/powers/functions reasonably implied therefrom to

conclude that many of the excised projects were within the

zone of proper basin board functions. Purchase of land is

authorized by "payment for real property interests for works of

the basin". Section 373.0695(2)(f). Infrared aerial photography

to minitor large wellfields for environmental damage is authorized

by "preparation of engineering plans for development of water

resources of the basin". Section 373.0695(1)(a). Aerial photo-

graphy for floodplain delineation and for developing plans for

regional water supply systems is authorized by the same subsection.

Providing assistance to multi-county water supply authorities is

explicitly authorized under Section 373.0695(1)(f). Payment for

allocated administrative and regulatory costs between basin boards

and the governing boards derives authorization from "administrative

and regulatory activities of the basin". Section 373.0695(2)(e).

Additional evidence of the propriety of including such items

in basin budgets may be gleaned from an historical review.

Policy 211-007 (Appendix M) signed in 1980 indicates that

many of these expenditures were included in basin boards at

that time and had been so included for an unstated number



43











of prior years. The inclusion was specifically approved

by that policy. Early audits of SWFWMD indicate the inclusion

of some of these type projects in basin boards as early as

1973 (Appendix 0); yet the office of the Auditor-General

which is charged with conducting performance audits as well as

financial audits (Section 11.45(2), Florida Statutes) reported

their inclusion without criticism. Silence of the Auditor-

General under such circumstances implies approval of the

expenditures.

Similarly, more recent audits of SWFWMD by Ernst & Whinney

in 1982 and 1983 have also duly included basin expenditures

in their reports. They, too, have reported these basin projects

without criticism. (Appendix Q and R).

Perhaps the most persuasive evidence of all, however,

is containedin a 1984 Florida Sena document. The Select

Committee on Water Management Districts after months of
10/(Appendix S)
meetings and hearings issued its report.-AIt contained detailed

comparisons (fiscal and administrative) of various water

management districts. It contained numerous recommendations

regarding audits, purchase and bidding procedures, travel

policies, funding sources, transfer of funds and budgets.

Most significantly, however, the Senate report contained

not one word of criticism of SWFMWD basin board projects

although basin board budgets in FY-1984 totalled$17 million

(Appendix T ), a large percentage of which went for projects


10/ The report incidentally was very critical of basin boards
in the St. Johns River Water Management District, noting
that one of them had not met in a year and suggesting
the possibility of abolishing the Oklawaha and Greater
St. Johns River Basin Boards.

44











identical to those eliminated by governing board action

from FY-1985. One might reasonably suppose, if such large

sums of public monies were being spent without statutory

authority --- as claimed by Appellants --- that the Senate

Select Committee on Water Management Districts would have

found the matter worthyof comment in its report. The

Committee's silence is deafening.







































45











PART B


III. THE ACTION OF JULY 11 SHOULD BE DECLARED VOID
ON PRINCIPLES OF EQUITY.


Defendants stand before the courts of equity with

hands that are encrusted in mud. They embarked upon a campaign

to induce by misstatement the Florida Legislature to amend

the state's laws to enable them to abolish the basin boards

in Southwest Florida. They accomplished that objective by

telling the legislators that the provisions of the bill they

were promoting were a mere "housekeeping measure" and were

"intended to be corrective in nature"; in fact, they were

intended to bring about substantive changes of the most

fundamental nature in the governmental framework for the

protection of our water resources. Defendants then moved

with alacrity to transfer the legislative "authorization"

into local policy. Their already-unclean hands grew blacker

as they engineered meetings to minimize public notice and

public participation (particularly from the persons most

directly affected) and failed to comply with the most basic

requirements of the Florida Administrative Procedure Act

and of Due Process demands.

A court of equity is entitled to look behind the shadow

to determine the substance of the action. Equity, it is

said, looks to the spirit and not to the letter. Pierce

v. Scott, supra; Bruce's Juices, supra; Miller v. Duke, supra,

and Nelson v. State, 84 Fla. 631, 94 So. 680 (Fla. 1922).



46











"Equity applies its x-rays to all masks and covers and sees

through to the real substance", the Florida Supreme Court

held in Schupler v. Eastern Mortgage Co., supra. In the

case at bar, if one looks behind the facade, the real intent

and nature of the July 11 action (and of the course of actions

leading to July 11) appears in high relief. The real substance

of the action was the destruction of the basin boards, admit-

tedly more slowly than the original proposal called for but,

nevertheless, achieving the same result. An acute Machiavellian

insight is not required to ascertain the effect of the "re-

structuring" of the basin boards. The fact the original

proposal explicitly called for abolishment of those boards

and transfer of their taxing capabilities to the governing

board serves to confirm the obvious; not only is the effect

of the modified proposal identical with that of the initial

proposal, but the intent is also identical.

Recognition of this identicity of effect leads us to

another principle of equity. One is not permitted to do

indirectly what he is not permitted to accomplish directly.

Clermont Minneola Country Club, Inc. v. Loblaw, 106 Fla.

122, 143 So. 129 (1932) and Johns v. Bowden, 68 Fla. 32,

66 So. 155 (1914). Granted, then, that the July 11 action

was intended to abolish the basin boards, would the governing

board have been permitted to abolish the basin boards directly?

Under Chapter 373, Florida Statutes, alone the issue is debatable,

but under 61-691, the governing board clearly did not possess

such authority; that which the legislature creates or mandates


47










to be created, only the legislature can destroy. The issue

comes down, then, to the effect of the 1984 legislation.

What construction is to be placed upon committee substitute

for committee substitute for SB 1040 and 788? The bill called

for repeal of particular provisions of 61-691; the legislative

intent behind the bill was the repeal of provisions relating

to basin boards that were inconsistent with Chapter 373.

The legislative intent --- unequivocally pronounced in every

legislative document --- was to repeal only those portions

of 61-691 that were inconsistent. If the 1984 act is read

through glasses of legislative intent --- legislative intent

unambiguously articulated in contemporaneous legislative

documents --- then it becomes abundantly clear that the governing

board did not have authority to abolish basin boards and

to transfer their tax capabilities under Section 373.503,

Florida Statutes, to itself. If it could not do so directly,

it could not do so indirectly.

Such a conclusion would be well grounded in equitable

precedence. The Clean Hands Doctrine is well-known to equitable

jurisprudence. See Langford v. Read, 69 Fla. 198, 68 So.

723 (Fla. 1915); Boston and Florida Atlantic Coast Land Company

v. Alford, 150 Fla. 296, 8 So.2d 483 (Fla. 1942); McMichael

v. McMichael, 158 Fla. 413, 28 So.2d 692 (Fla. 1947) and

Roberts v. Roberts, 84 So.2d 717 (Fla. 1956). See also Fla

Jur 2d "Equity", Section 49. Equity will not permit a party

to profit from his own wrong. Schmitt v. Bethea, 78 Fla.

304, 82 So. 817 (Fla. 1919); presumably, that would include



48











a public agency's making misstatements of fact to the Florida

legislature.

Equity also is said to be a court of conscience. Taylor

v. Rawlins, 86 Fla. 279, 97 So. 714, 35 ALR 271 (Fla. 1923);

Wicker v. Board of Public Instruction, 106 So.2d 550 (Fla.

1958); Quinn v. Phipps, 93 Fla. 805, 113 So. 419, 54 ALR

773 (Fla. 1927). Equity also requires fair dealing, good

faith, fairness and justice from all litigants. Peters v.

Brown, 55 So.2d, 334 (Fla. 1951); Brooker v. Smith, 108 So.2d

790 (2nd DCA 1959); Leesburg v. Knight, 164 So.2d 547 (2nd

DCA 1964).

It seems abundantly clear that Defendants here seek

to profit, i.e., destroy basin boards for the purpose of

taking over their tax capabilities, from their own misdeeds.

The good faith and fair dealing of Defendants are open to

serious question, and when seen through the glasses of unambiguously

stated legislative intent, they are attempting to accomplish

indirectly what they are prohibited from doing directly.


CONCLUSION:

One of the ultimate issues underlying this litigation

is, which board will have authority to levy .75 mills of

ad valorem taxes? So long as there are basin boards in SWFWMD,

the statutes reserve that taxing authority to the basins.

Defendants have made clear their real purpose in proposing

abolishment of basin boards is a transfer of that tax capability

to the governing board. The result would be the concentration

of a tax power approximating $70 million annually --- and


49









increasing about 10% each year --- in an appointed board

on which at least nine counties are unrepresented. The taxes

collected in sixteen counties would be commingled and spent

however and wherever the governing board decides.

A second issue relates to the future efficacy of the

Florida Administrative Procedure Act. Will an agency by

referencing a policy in terms of budgetary impact be allowed

to circumvent the procedural requirements of rulemaking contained

in Chapter 120 and to evade the constitutional demands of

Due Process?

A third issue speaks to the power of one agency to control

the budgetsof another legislatively-created, quasi-independent

governmental entities. Can Defendants choke off the budgets

of legislatively-created, gubernatorialy-appointed basin

boards by the adoption of a vague motion calling for "strict

conformance" with the statutes and leave determination of

which basin projects so conform to the standardless discretion

of the staff?





Respectfully submitted,







bn C. Evans, Esq.
Sorida Citrus Mutual
Post Office Box 89
Lakeland, FL 33802
813-682-1111


50














CERTIFICATE OF SERVICE

I do hereby certify that a true and correct copy of
Appellee's Answ r ief has been snt by regular U.S. Mail
on this the day of C c 1984.



Charles W. Allen Robert M. Rhodes, Esq.,
Citrus County Property Appraiser Suite 701, Lewis State Bank Building
Citrus County Courthouse P. 0. Box 1876
110 Apopka Avenue, Room 200 Tallahassee, FL 32303-1876
Inverness, FL 32650
James Roden
Dwight O. Bell Polk County Property Appraiser
Levy County Property Appraiser Polk County Courthouse
P. O. Drawer 100 120 Central Avenue
Bronson, FL 32621 Bartow, FL 33830

W. R. Daniel Les Samples
Hillsborough County Property Appraiser Hernando County Property Appraiser
Hillsborough County Courthouse, Room 272 Hernando County Courthouse
Tampa, FL 33602 4th Floor
Brooksville, FL 33512
Ed Havill
Lake County Property Appraiser Ronald J. Schultz
P. O. Box 1027 Pinellas County Property Appraiser
Tavares, FL 32778 Pinellas County Courthouse
315 Court Street
Ronnie Hawkins Clearwater, FL 33516
Sumter County Property Appraiser
P. O. Box 157 Robert Bruce Snow, Esq.
Bushnell, FL 33513 112 North Orange Avenue
Post Office Box 2060
Judy Kavanaugh, Esq. Brooksville, FL 33512
United First Federal Building
1390 Main Street, Suite 524 D. Reid Stewart
Sarasota, FL 33577 Hardee County Property Appraiser
P. O. Box 877
Oliver Lowe Wauchula, FL 33873
Charlotte County Property Appraiser
Charlotte County Courthouse, Room 310 Gary Vorbeck, Esq.
Punta Gorda, FL 33750 Sun Bank Building, Suite 201
10 South DeSoto Avenue
J. W. Martin Arcadia, FL 33821
Highlands County Property Appraiser
Commerce Avenue Annex Stephen A. Walker, Esq.
Sebring, FL 33870 2379 Broad Street
Brooksville, FL 33512
Margaret McAnly
DeSoto County Property Appraiser Ted Williams
P. O. Box 311 Pasco County Property Appraiser
Arcadia, FL 33821 P. O. Box 401
Dade City, FL 34297-0401
John W. Mikos
Sarasota County Property Appraiser
Sarasota County Courthouse _
2001 Adams Lane /
Sarasota, FL 33577 -

Rudy Muckenfuss ice r sident, Staff Legal Counsel
Marion County Property Appraiser Florida Citrus Mutual
P. O. Box 486 Post Office Box 89
Ocala, FL 32678-0468 Lakeland, FL 33802
(813) 682-1111
Frank Perkins
Manatee County Property Appraiser
P. O. Box 1338
Bradenton, FL 33506





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