Title: Opinion File 74-28 thru 74-30
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Permanent Link: http://ufdc.ufl.edu/WL00003378/00001
 Material Information
Title: Opinion File 74-28 thru 74-30
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Buddy Blain's Collections - Opinion File 74-28 thru 74-30
General Note: Box 14, Folder 4 ( Opinion File 1974 - 1975 - 1974-1975 ), Item 6
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003378
Volume ID: VID00001
Source Institution: Levin College of Law, 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





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STATE OF FLORIDA
DEPARTMENT OF LEGAL AFFAIRS


, 5-30-74
, PMWilfong
Hawkins
File


OFFICE OF THE ATTORNEY GENERAL
S" THE CAPITOL
TALLAHASSEE, FLORIDA 8O304
.. ..--. KEY WORDS: ( P -
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Honorable Louis de la Parte
Senator, 22nd District
338 Senate Office Building
Tallahassee, Florida 32304

Re: GOVERNOR--limitations on power of appointment.
S27, Art. III and S14, Art. XVI, 1885 Const.;
S6, Art. IV.and S3, Art. X, 1968 Const..

uear -eaator de la karet:

I have your letter of May 29, 1974, requesting an opinion as to
whether the Legislature may limit the gubernatorial power of
appointment to a'state officd/to a group of three nominees to
be submitted by a member of the Cabinet.

As you know, the former provision of the 1885 Constitution (27,
Art. III) -which required the Legislature to "provide for the elec-
tion by the people or appointment by the Governor of all State
and county officers not otherwise provided for by this Constitu-
tion" was not carried forward into the 1968 Constitution and thus,
under well-settled rules of construction, must be deemed to have
been repealed. It was this provision which was interpreted by
the Supreme Court in Westlake v. Merritt, 95 So. 662 (Fla. 1923),
as prohibiting the Legislature from limiting the Governor's
appointive power to a list of nominees selected by a professional
association.

The 1968 Constitution vests in the Governor the power to fill "by
appointment any vacancy" in an appointive or'elective state and
county office, when not otherwise provided for in the 1968 Consti-
tution, and declares in S3, Art. X, that a vacancy in office
"shall occur upon the creation of an office, .. ." See also





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ROBERT L. SHEVIN
ATTORNEY GENERAL









Honorable Louis de la Parte
Page Two



S6, Art. IV, 1968 Constitution, stating that, whenhn provided
by law, confirmation by the senate or the approval of three mem-
bers of the cabinet shall be required for appointment to or
removal from any designated statutory office." And a strong
argument may be made that the only limitation that may be imposed
upon the Governor's appointive power to fill vacancies in elec-
tive or appointive statutory offices is that contained in S6,
Art. IV, supra.

However, only the Florida Supreme Court can say, for sure, what
the framers of the 1968 Constitution and the people who adopted
it had in mind as to the limitations which the Legislature may
validly provide in creating state or county offices and desig-
nating the Governor as the appointive authority; and, presumably,
the court would carefully consider the circumstances and histori-
cal events leading up to the 1968 revision, as well as the reports
of the Constitutional Revision Commission and legislative commit-
tees who considered it, before deciding such an important question.

It is clear, however, that, even under the omitted provision of
S,1 the lbb Constitution (927, Art. III, supra), the members or tne
., .governing bodies of special districts or authorities were not
Sreguired to be either appointed by the Governor or elected by the
People. See 'State v. Ocean Shore Improvement District, 116 Fla.
S 784, 156 So. 433; State v. Reardon, 144 Fla. 755, 154 So. 868;
State ex rel. Smith v. Hamilton, 166 So. 742 (Fla. 1936); Town of
Palm Beach v. City of West Palm Beach, 55 So.2d 566 (Fla. 1951),
ruling that special-district officers were not state or county offi-
cers under S27, Art. III, supra, or S14, Art. XVI, 1885 Constitu-
tion (requiring state and county officers to continue in office
until their successors were duly qualified).- Accord: AGO's 069-49,
071-324, 071-328, 073-47, and 073-359. The 1968 Constitution has
recognized that the members of special districts and authorities,
like the governing bodies of municipalities, may be selected in a
manner to meet a particular need or serve a particular purpose.
See S6, Art. VI, Fla. Const., providing that registrationin and
elections in municipalities shall, and in other governmental enti-
Sies created by statute may, be provided by law." (e.s.)

The bill with which you are particularly concerned--CS for CS for
HB 3102--creates a special governmental entity to carry out a par-
ticular state purpose, the Florida State Fair Authority, as a
"public body corporate and politic and special instrumentality of




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Honorable Louis de la Parte
Page Three



the state, under the supervision of the commissioner of agricul-
ture. ." And it may be that the court would hold that the
officers of the Authority, even though.carrying out a state pur-
pose under legislative direction, were not "state officers" within
the purview of applicable constitutional provisions respecting
the appointive power of the Governor. Cf. Ch. 59-378 and Ch.
70-108, Laws of Florida, relating to the Inter-American Center
Authority (also declared to be a special instrumentality of the
state), and providing for the members of the Authority to be
appointed by the Governor from a list submitted by the governing
bodies of Dade County and two cities therein.

Trusting that these comments will be of some assistance to you
and with all good wishes, I remain

Sineely,



ROBERT L. SHEVIN
ATTORNEY GENERAL

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