The administrative process and constitutional principles.

• Author: Burris, Johnny C.
• Position: Florida Constitution

Separation of Powers

The basic precept of separation of powers is that the power of the government is divided into three departments: legislative, executive, and judicial.(1) No department may exercise the powers of another. The legislature also is prohibited from delegating to administrative agencies its functions or the functions of other departments.(2) This division of power is designed to "minimize the threat of ... tyranny" that arises when all the powers of the government are concentrated in the hands of only one body.(3) From this basic structural concept, the courts have evolved a variety of doctrines that constrain the exercise of the state's police powers.

Core Powers

Central to understanding the legal doctrines based on separation of powers is an appreciation for the type of power each branch exercises. Applied in a literal and formalistic fashion, the separation of powers would prohibit each branch of the government from exercising any of the powers of the others except as expressly provided in the Florida Constitution.(4) Such a rigid formalistic approach generally is not practical, and one branch on occasion may exercise some aspect of the powers of the other branches. The classic example is the delegation of quasi-legislative authority to the executive branch so that it may promulgate rules to implement statutes. Such rulemaking is legislative in nature, but is permitted.(5) There are, however, core functions that cannot be shared or delegated.

Executive Branch

The judicial or legislative branches may not interfere with or exercise discretionary executive functions solely within the Governor's power under the Florida Constitution or statutes. These types of executive decisions generally are not subject to judicial review.(6) This ensures that the courts do not interfere with political decisions of the executive branch.(7)

The Florida courts never have defined precisely the scope of constitutionally based discretionary executive authority.(8) In various cases, however, the courts have held that discretionary executive authority includes the following: the Governor's power to appoint and suspend public officials;(9) the decision to veto a bill;(10) executive budgetary decisions;(11) the decision to charter a bank;(12) the decision to investigate law violations;(13) the decision to conduct inspections;(14) the decision to grant a pardon;(15) the decision to grant or deny a parole request;(16) the decision to commute a sentence;(17) the decision to grant or deny a clemency petition;(18) the decision to prosecute crimes(19) or seek the death penalty;(20) the decision to pursue an appeal;(21) the decision to carry out a capital punishment sentence.(22)

The only time constitutionally based discretionary executive functions clearly are subject to substantive judicial review is when they are attacked for violating a provision of the Florida or federal constitution.(23) Florida courts have shown a distinct trend toward holding that very few executive decisions are discretionary, except those expressly given to the Governor under the Florida Constitution.

Most other executive decisions, once considered discretionary, now are governed by provisions of the APA or other statutes and are subject to judicial review. Such statutory constraints on the exercise of executive powers generally do not involve the invasion of the core discretionary functions of the executive branch.(24) In McDonald v. Dept. of Banking & Finance, 346 So. 2d 569, 577 (Fla. 1st DCA 1977), the court noted that the APA only limited the exercise of statutory discretion by executive branch officers:

In three important respects ... the APA affects the scope and manner of exercise of agency discretion: (1) the APA prescribes the process by which disputed facts are found; (2) it requires that the agency adopt as rules its policy statements of general applicability, requires agency proof of incipient policy not expressed in rules and permits countervailing evidence and argument; and (3) it requires an agency to explain the exercise of its discretion and subjects that explanation to judicial review.

The court found that these restrictions did not invade impermissibly the executive branch's powers because the APA governs only the method by which the discretion may be exercised.(25) Functionally, such constraints on the exercise of executive discretion have enhanced substantially the power of the courts to review executive decisions.(26)

The statutory requirements of the APA in most cases do not convert the executive decisionmaking process into a quasi-judicial proceeding.(27) However, the decision in Board of County Commissioners of Brevard County v. Snyder, 627 So. 2d 469 (Fla. 1993), suggests these issues may be reexamined by the courts. In the context of the APA, however, this issue may not be confronted directly because the Governor is not subject to the APA when exercising constitutional powers.(28)

Executive Budgetary Powers and Invasion of Legislative Power

There has been substantial litigation over the scope of legislative and executive power in the budgetary area. In Chiles v. Children A, B, C, D, E, & F, 589 So. 2d 260 (Fla. 1991), the Florida Supreme Court reaffirmed basic separation of powers principles in discussing the constitutionality of the statutory system for maintaining a balanced budget when tax receipts have not kept pace with expenditures.(29)

Since the Chiles decision, courts actively have reviewed executive decisions to determine if they encroach on the powers of the legislative branch. The decision in Hillhaven Corp. v. Dept. of Health & Rehabilitative Services, 625 So. 2d 1299 (Fla. 1st DCA 1993), rev. den., 634 So. 2d 623, epitomizes these decisions. In Hillhaven, the validity of a Department of Health and Rehabilitative Services rule that eliminated semiannual adjustments in the per diem Medicaid rate for nursing homes from January 1, 1990, through June 30, 1990, was challenged. The rule was adopted in response to a budgetary shortfall during the 1989-90 fiscal year No other explanation was offered for the adoption of the rule. The court found the rule invalid for two reasons. First, it had the effect of altering the legislative appropriation for this aspect of the Medicaid program, precisely what the decision in Chiles held unconstitutional. Second, the rule was an invalid exercise of delegated authority because it contravened the express statutory directions to the agency found in F.S. [sections] 409.266(1).

The issues concerning the division of authority over the budget have been clarified to some extent by the addition of Art. IV, [sections] 13 and Art. III, [sections] 19 to the Florida Constitution.

Legislature

Lawmaking through the legislative process is the exclusive prerogative of the legislature.[30] The legislature has the primary responsibility to shape public policy in Florida by the exercise of its lawmaking powers.[31] As the court noted in State v. Atlantic Coast Line R. Co., 56 Fla. 617, 47 So. 969, 976 (1908), "[t]he Legislature may not delegate the power to enact a law, or to declare what the law shall be." This power may not be exercised by another branch of government or administrative agencies.(32)

Although the legislature, within appropriate limitations discussed below, generally may delegate quasi-legislative power to administrative agencies, there are some areas in which no delegation is permitted. In various cases the courts have identified matters that cannot be entrusted to another branch or an administrative agency: the conduct of the impeachment process;(33) initial appropriation decisions;(34) reduction of appropriations;(35) imposition of a tax;(36) definition of a crime;(37) creation of officers and other public positions;(38) reapportionment of the legislature;(39) qualification of members of the legislature;(40) manner...