Title: Opinion File 78-79 thru 78-84
CITATION THUMBNAILS PAGE IMAGE ZOOMABLE
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/WL00003541/00001
 Material Information
Title: Opinion File 78-79 thru 78-84
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Buddy Blain's Collections - Opinion File 78-79 thru 78-84
General Note: Box 14, Folder 5 ( Opinions 1976 - 1977 - 1976 - 1977 ), Item 93
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00003541
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

78 79

,.,--"-----.. -, KEY WORDS: -



FLORIDI HOUSE OF REPRESENTATIVES
DONALD L. TUCKER. Speaker/JOHN L. RYALS, Speaker Pro Tempore
COMMITTEE ON STANDARDS & CONDUCT

Sidney Martin
Chairman May 1, 1978
Harold Dyer
Vice Chairman



MEMORANDUM

TO: Members, Florida House of Representatives

FROM: Sidney Martin, Chairman
Committee on Standards & Conduct

SUBJECT: Legal Opinion and Interpretation


Confusion has arisen and several inquiries have been
propounded to me regarding Article II, Section 8(e) of the
S Florida Constitution -- part of the Sunshine Amendment.
Therefore, the legal staff of this Committee has issued, and
I have concurred in, this legal opinion and interpretation
which I am confident correctly construes the law.

I am sure by now that all of you have heard of the case
4 decided by the Florida Supreme' Court involving the Sunshine
Amendment and the forfeiture of Judge Sam Smith's retirement
benefits, Williams v. Smith, case No. 52,840 (Fla. Sup. Ct.,
April 4, 1978). The statements made by the Supreme Court in
that slip opinion clearly demonstrate the fact that, except
for financial disclosure, the Sunshine Amendment is not self-
implementing (or self executing):

There could hardly be a more
specific record of patent intent of the
framers that the Legislature would act
to implement the constitutional amendment
and supply the needed specifics. Slip
Op. at p.4

In each of the subsections of the
'Sunshine Amendment,' implementing
legislation is authorized and obviously
!anticipated. Id., at p.4



Lonnie N. Groot. Staff Director
316 Hous Office Building, Tallahassee. Florida 32304 (904) 488-7021





1 78 80




( Memorandum
Page Two
May 1, 1978



That subsection [8(a)] standing
alone cannot be said to be self-
executing, and in obvious recognition
of that fact, the framers included a
schedule which provides those specifics
'until changed by law.' No similar
schedule was provided for the other
subsections.' Id., at p.5 (emphasis
supplied)

Instead, [the framers] followed the
general scheme of the entire amendment
and, except for the financial disclosure
provisions, left it to the Legislature
to provide the statutory implementation
to carry out the mandate of the people.'
Id., at p.6 (emphasis supplied)

Had such a fear existed the framers
Should have drafted a self-executing
amendment. Id., at p.8, footnote 8.

We therefore, conclude that in adopt-
ing Article II, Section 8, the people in-
tended that the amendment not be self-
executing and that the Legislature should
subsequently enact implementing laws to
make it workable and effective and to
carry out the intent. Id., at
p.8 (emphasis supplied)

The Supreme Court's holding was quite clear and unequivocable.
The Attorney General, however, has filed a "Petition for Rehearing
And/Or Clarification" because he had previously opined in AGO
077-136 that Article II, Section 8(e) was self-executing and
because many actions which the Commission on Ethics had taken are
now subject to question (for example: defining breach of public
trust). He has also issued an opinion (dated March 6, 1978) to the
Ethics Commission stating that this prohibition applies only when
a former legislator goes into the private sector after having
served in the Legislature. He said that if a former legislator was
elected to serve in another public capacity, the prohibition


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I;-------





78 81

Memorandum
Page Three
May 1, 1978



against lobbying wouldn't affect him. This opinion, of course,
raises serious problems as to equal protection. The Secretary
of State has construed the requirement in the Sunshine Amend-
ment that candidates for constitutional office must disclose
their personal finances as required by Article II, Section 8 in
light of the Williams decision. In DE 78-21, filed April 21,
1978, he ruled that failure to so comply with the State Consti-
tution does not disqualify an individual from being placed on
'the ballot for the State Senate. Unless the Supreme
Court retracts all that it said and admits that it made a big
mistake (due to the haste to issue opinions before Justice
Karl's departure and the Chief Justice's duties on the Constitu-
tion Revision Commission, I am told), the opinion in Williams v.
Smith will hold true to its original language and meaning. One
reporter, in an ex parte communication with a Justice, was told
that the Court didn't mean to say what it clearly did.

Regardless of which way the self-implementing issue is
decided, however, it is clear that Article II, Section 8(e) will
not affect legislators currently in office. The amendment is
clearly one that has prospective application only. In other
words, the prohibition affects only legislators who take their
office after the effective date of the Sunshine Amendment
(January 4, 1977). The law on that point is clear.

The Sunshine Amendment provides that:

No member of the legislature or
statewide elected office shall
personally represent another person
or entity for compensation before
the government body or agency of which
the individual was an officer or member
for a period of two years following
vacation of office. Article II,
Section 8(e), Florida Constitution

Article XI,' Section 5(c), however, establishes the effective
date of amendments to the State Constitution. That section pro-
vides that:

If the proposed amendment or revision
is approved by vote of the electors, it
shall be effective as an amendment to
or revision of the constitution of the
state on the first Tuesday after the first


L _





78



Memorandum
rPage Four
May 1, 1978



Monday in January following the elec-
tion, or on such other date as may be
specified in the amendment or revision.

The Sunshine Amendment, then, took effect on January 4, 1977,
following its approval by the voters of the State of Florida
on November, 1976.

Successful candidates for legislative office, however,
assume office immediately upon their election by the voters.
A newly elected legislator assumes his or her office before
taking the Oath of office at the Organizational Session.

It is fundamental to accepted principles of law, and indeed
axiomatic, that constitutions, as well as statutes, are con-
strued to operate prospectively unless on the face of the
instrument or enactment, the contrary intent is manifest beyond
a reasonable doubt. See the maxims set forth at 16 C.J.S.
Con. Law 40, 16 Am. Jur. 2d Con. Law 48, and 6 Fla. Jur.
Con. Law 41. This rule is well articulated in Sands, 2
Southerland Statutory Construction (4th ed. 1973):

It is a fundamental principle of
jurisprudence that retroactive applica-
tion of new laws involves a high risk of
being unfair. There is a general con-
sensus among all people that notice or
warning of the rules that are applied to
determine their affairs should be given
in advance of the actions whose effects
are to be judged by them. The hackneyed
principle that everyone is held to know the
law, itself a principle of dubious wisdom,
nevertheless presupposes that the law is at
least susceptible of being known. But
this is not possible as to law which has not
yet been made. Sands, supra, at p.247

One Florida case is on all fours with the factual situa-
tion discussed here. In State ex rel. Judicial Qualifications
Commission v. Rose, 286 So. 2d 562 (Fla. 1973) the Florida
Supreme Court applied the rules herein discussed in determining
whether Article V, as it relates to the mandatory retirement of
judges, was retrospective or prospective in application.


Y--- F





78 S3




Memorandum
Page Five
May 1, 1978



Judge Rose was elected on November 3, 1970, for a
four year term as Judge of the Court of Record for Lee County.
He took office on January 5, 1971. Pursuant to Article V,
Section 20(d)(2), he was elevated to the position of Circuit
Court Judge for the Twentieth Judicial Circuit on January 1,
1973. Judge Rose reached the age of seventy on October 22,
1972. The issue was whether Judge Rose reached the age of
mandatory retirement on that date.

The Supreme Court held that the provisions relating to
mandatory retirement which took effect on January 1, 1973,
were to operate prospectively as to Judge Rose. The Court said:

It is clear that the Constitution means
that a judge who has entered by appointment or
election to a judgeship knowing that he must
retire at age seventy shall do so. This
requirement is legally and morally certain.
However, it is a different situation where
a judge elected to a judgship and commissioned
for a four year term has no foreknowledge at
that time from then existing constitutional
language that he will be compelled to retire
at seventy. Rose, supra, at 463 (emphasis
supplied)

On this same set of facts, the Supreme Court of Missouri has
reached the same conclusion. See, State ex rel. Hall v. Vaughn,
483, S.W. 2d 396 (Mo. 1972). Along this same line, see Stone v.
Healy, 5 Conn. 278 (S.Ct. 1824); State v. Giles, 2 Pinn. 166,
52 AmD 1949 (Wisc. 1849); State ex rel. Stutsman v. Light, 281
N.W. 777 (N.D. 1938); and Powell v. Price, 41 S.E. 2d 539 (Ga. 1941).

The parallel is clear. A member of the Legislature, elected
in, or prior to, November, 1976 took office unburdened by the
prohibition in Article II, Section 8(e) and with no foreknowledge
at that time from then existing constitutional language that he
or she would be denied the opportunity to personally represent
another person or entity before the Legislature for a period of
two years following vacation of office. Indeed, others would be
denied having those people with perhaps the greatest expertise
representing their cause.





-78 84



Memorandum
SPage Six
May 1, 1978



The First Amendment to the United States Constitution
confers broad immunity upon the activities of those who
attempt to present their points of view to elected officials.
Chief Justice Charles Evans Hughes once wrote:

The maintenance of the opportunity
for free political discussions to the
end that government may be responsive to
the will of the people and that changes
may be obtained by lawful means, an
opportunity essential to the security
of the Republic, is a fundamental principle
of our Constitutional system. Stromberg v.
California, 83, U.S. 359,369 (1931)

Justice Brennan once summed it up well when he observed "speech
concerning public affairs is more than self expression; it is
the essence of self-government." Garrison v. Louisiana, 379
U.S. 69, 74-75 (1964).

SThis First Amendment Right should not be forfeited away
without notice. Forfeitures are abhored in the law. That
principle is so well settled that no citation is needed.

In conclusion, the prohibition set forth in Article II,
Section 8(e) does not apply to any legislator except those
who were elected after the effective date of the Sunshine Amend-
ment, to wit, January 4, 1977.


SM/Gju




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