Title: Memorandum to LMB from TEC re: Validity of Section 11
Full Citation
Permanent Link: http://ufdc.ufl.edu/UF00051962/00001
 Material Information
Title: Memorandum to LMB from TEC re: Validity of Section 11
Alternate Title: Memorandum to LMB from TEC re: Validity of Section 11 of Ch. 84-341, Laws of Florida.
Physical Description: 4p.
Language: English
Publication Date: Jan. 17, 1985
Spatial Coverage: North America -- United States of America -- Florida
General Note: Box 4, Folder 1 ( SF BASIN BOARD CONCEPT ), Item 46
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: UF00051962
Volume ID: VID00001
Source Institution: University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text



DATE: January 17, 1985

RE: Validity of Section 11 of Ch. 84-341, Laws of Florida

Introductory Material:

Buddy, I thought this would be an easy thing to check. I was
under the impression that a general law could not be used to
repeal only specific portions of a previously enacted special
or local act. However, when I started to look for authority
to support that proposition, it proved elusive. Hence, here
is a "fast shuffle" which can only relate to you the matters
that I've checked and the concerns that I have about the prob-

Issue Presented:

Is Section 11 of Ch. 84-341, Laws of Florida, an unconstitutional
exercise of legislative power, when the notice provision of Sec-
tion 10, Article 3, The Florida Constitution, was not complied
with and when Section 11 of Ch. 84-341 only applied to a specific
portion of Ch. 61-691, Laws of Florida?


A quick search of the research material failed to turn up a single
instance where a similar situation has occurred. I was surprised
that a black letter rule of law couldn't be found which would stand
for the proposition that you have to use a special law to repeal
portions of a special law. Perhaps I looked in the wrong places?


The pertinent constitutional provision is Section 10 of Article 3.
It provides:

"No special law shall be passed unless notice
of intention to seek enactment thereof has
been published in a manner provided by general
law. Such notice shall not be necessary when
the law, except for the provision for referen-
dum, is conditioned to become effective only
upon the approval by a vote of the electors
of the area affected."

Validity of Section 11 of Ch. 84-341, Laws of Florida
January 17, 1985
Page 2

Over the years, this Section has been consistently interpreted to
render invalid "special laws" which have been adopted without com-
pliance with the requisite notice provision. Hence, once a court
concludes that a particular law is a "special law", and once it
can be demonstrated that the same law was adopted without compliance
with this special notice provision, the courts uniformly conclude
that the law is unconstitutional. The great difficulty, of course,
is determining whether or not it's a special law or a general law.

In this particular situation, if a court decides that Ch. 84-341,
including subsection 11 thereof, is a general law, then I have no
doubt that the court was conclude that Section 11 is constitutional.

Unfortunately the criteria that have been used to discriminate be-
tween general laws and special laws are not very helpful. Here's
a quick recap of some of the highlights:

1. A general law operates uniformly upon subjects
as they may exist in the state, applies uniformly
within permissible classifications, and operates
universally throughout the state, or relates to
a state function or instrumentality; moreover, a
general law operates uniformly, not because it
operates upon every person in the state, but
because every person brought under the law is
affected by it in a uniform fashion. Here's a
case cite, Department of Legal Affairs v. Sanford-
Orlando Kennel Club, Inc., (1983, Florida) 434 So
2d 879. See also,Section 12 of 49 Fla. Jur. 2d,
St tutes, 12.

2. A special or local law is only relating to, or de-
sicned to operate upon, particular persons or things
or in a specifically indicated part of the state, or
one that purports to operate upon classified persons
or things or within classified territory when classi-
fication is not permissible, or the classification
adopted is illegal.

3. A statute relating to subdivisions of the state or
to subjects or to persons or things as a class, bas-
ed upon proper distinctions and differences that in-
her in or are peculiar or appropriate to the class,
as a general law. A statute relating to particular
subdivisions or to particular places of classified
localities is a local law. A statute relating to
particular persons or things or other particular
subjects of a class is a special law. Here's a case
cite, State ex rel. Buford v. Daniel (1924 Florida)
99 So 804.

Validity of Section 11 of Ch. 84-341, Laws of Florida
January 17, 1985
Page 3

In order to construct an argument one way or the other on this
issue, it would be necessary to examine in detail the respective
portions of Ch. 61-691, that were purportedly repealed. The re-
lationship between those sections and existing general law in
Ch. 373 must be analyzed.

I would certainly expect proponents of the '84 legislation to
argue that most, if not all, of the "repealed portions" of Ch.
61-691 had already been repealed by implication. It will be im-
portant not to forget that special acts can be superseded and
repealed by comprehensive general legislation on the same subject.
See for example the case of Town of Palm Beach v. Town Beach Local
186 (275 So 2d, 248). In this case, the Supreme Court concluded
that the challenge legislation was an overall revision or general
restatement of the law on the same subject. Hence, the related
special act was presumed to have been superseded and repealed.
It seems uncertain to me whether Section 373.149 will be sufficient
to establish to a trial court that those portions of Ch. 61-691
that mandated the existence of basins throughout the district were
still in effect.

A more difficult problem is presented by the 1983 decision of the
Florida Supreme Court in the St. John's River Water Management
District vs. Deseret Ranches of Florida, Inc. case (421 So. 2nd,
1067, Florida, 1982). In this case, the validity of Ch. 77-382
was challenged by Deseret Ranches as an unconstitutional special
law since it was adopted without compliance with the notice pro-
visions of Section 10, Article 3, Florida Constitution. As you
will recall, Ch. 77-382 was the legislation which created the
greater St. John's River Basin. You will recall that the Fifth
District Court of Appeal reached the conclusion that it was, in
fact, an invalid special law. The Supreme Court, however, reversed
the District Court on this decision and concluded that Ch. 77-382
was a constitutionally valid statute. In reaching this conclusion,
the Court seems to favor certain new approaches to statutory con-
struction. Here's a quick recap of the points deemed pertinent to
the Court's decision on this issue:

1. The nature and history of the enactment was
pertinent to its interpretation.

2. It was necessary to construe the challenged
law in conjunction with Ch. 373.

3. The comprehensive nature of the Florida Water
Resources Act "seemed to spill over" into the
1977 legislation.

4. The Court was persuaded that all the other dis-
tricts and basins within the other water manage-
ment districts had been created pursuant to a

Validity of Section 11 of Ch. 84-341, Laws of Florida
January 17, 1985
Page 4

valid general law the preceding year (1976).
They could find no reasonable basis for
characterizing the 1977 legislation any dif-
ferently than a legislation creating all the
other basins in 1976.

The 1977 legislation became an integral part
of Florida's comprehensive water management
plan affecting people statewide.

5. The Court lifted dicta from an early 1938 de-
cision which limited the terms "special or
local laws" as used in the constitution to
refer ordinarily to laws which relate to enti-
ties, interests, rights, and functions other
than those of the state. The organic law does
not contemplate or require previous publica-
tion of notice of proposed laws for the exer-
cise of state powers and functions. The Court
then concluded that the statewide water manage-
ment plan created and implemented by Ch. 373 is
primarily a state function serving the state's
interest in protecting and managing a vital,
natural resource. Hence, the '77 legislation
could not, by definition be a special or local

6. The fact that the law does not have universal
application does not mean that it can't qualify
as a general law if it materially affects the
people of the state. The Court looked to early
turnpike authority and coastal tourist develop-
ment industry cases for support of this propo-
sition. Because of the statewide impact of the
Water Resources Act, the Court concluded that
Ch. 77-382 was a general law.

The proponents of Section 11 of Ch. 84-341 will be able to con-
struct a fairly strong case that this legislation "merely" makes
uniform the statewide comprehensive plan otherwise enacted and
embodied in Ch. 373. A very complicated and convoluted trail of
historical development of the legislation would be required in
order to convince a court that 61-691 remained valid and extant.
in 1984. The trail may even lead in and out of Ch. 378(?)....
(God help us!)

I'm sorry that I couldn't reach a more definite conclusion in
the limited time that was available. I hope this is helpful.

TEC/sam fV
-TQ _'F

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