The expanded availability of declaratory statements in administrative law.

• Jurisdiction: United States
• Date: 01 April 2000
• Author: Frazier, Seann M.

Most practitioners are familiar with the use of declaratory judgments to clarify the rights, status, and other equitable and legal positions of their clients. This statutorily created tool[1] has served as an effective means of settling controversies without the time and expense of traditional litigation. However, fewer may be aware of the availability of a similar tool for use when a client's interests are governed by a state agency. This article compares the use of declaratory judgments to the relief available from the declaratory statement mechanism found at F.S. [sections] 120.565 and notes a recent Florida Supreme Court opinion which will have the effect of broadening that mechanism's use.

The Declaratory Judgment Act was intended to render practical help in ending controversies which have not reached a stage where other legal relief is available.[2] Cases interpreting the act have held that the use of declaratory judgments "should be liberally construed and their boundaries elastic."[3] Declaratory statements are intended to have a similar effect in the administrative arena, when a party's rights are in the hands of a state agency. Thus, courts have held that judicial opinions interpreting declaratory judgments may be used to interpret declaratory statements.[4] However, the requirements and relief available from each of these tools differ.

Circuit and county courts may issue declaratory judgments to resolve the rights of parties to a contract or other writing, or to construe a statute or any regulation or ordinance issued pursuant to a statute.[5] The breadth of such proceedings is expansive.

Declaratory statements were intended to be used even more commonly than declaratory judgments. In 1985, a primary authority on the Administrative Procedure Act, Professor Patricia Dore, suggested that the declaratory statement mechanism was intended to be more widely available than declaratory judgments "and that [their] use not be unduly restricted by artificial access barriers that would frustrate its primary purpose."[6] Nevertheless, the broad use of this tool has been curtailed by judicial interpretations of the law creating the mechanism.

Declaratory statements are available pursuant to F.S. [sections] 120.565. An earlier version of that law provided: "A declaratory statement shall set out the agency's opinion as to the applicability of a specified statutory provision or of any rule or order of the agency as it applies to the petitioner in his particular circumstances only.[7] Courts have long held that this language prohibited the issuance of a declaratory statement when the statement would apply to any individual other than the petitioner.[8] With this restriction, a declaratory statement was only appropriate when it addressed an entirely unique situation. Declaratory statements were inappropriate when they rendered statements of broad applicability interpreting law or policy.[9]

In part, decisions limiting the availability of declaratory statements were based on an interpretation of the declaratory statement's enabling legislation which required opinions to reach only the petitioner in her or his "particular circumstances only." These holdings were also based on the duty of agencies to initiate rulemaking when issuing statements of law or policy with broad applicability.[10] Agencies are charged with the duty of publishing all statements of general applicability in the form of rules. Affected parties then have a forum to challenge such rules pursuant to the APA. By limiting the use of declaratory statements to those occasions when "only" the petitioner's interests would be affected, the courts, and perhaps the legislature, clearly segregated the remedies related to rulemaking from the relief afforded by declaratory statements. However, their actions had the practical effect of severely limiting the use of declaratory statements because almost any such statement could be declared applicable to more than one particular set of circumstances.

In 1996, the Administrative Procedure Act was substantially revised.[11] Among the revisions, the legislature deleted the word "only" from the requirement that a declaratory statement address a petitioner's particular circumstances. At the same time, the legislature created a new limitation on the ability of agencies to initiate rulemaking. Whereas once rules would pass muster if they were "reasonably related" to the legislation which served as their basis,[12] the new law prohibited any rule from regulating more than the "particular powers and duties" set forth in organic legislation.[13]

With this backdrop, the First District Court of Appeal began to chip away at that line of cases which restricted the usefulness of declaratory statements in Chiles v. Department of State, Div. of Elections, 711 So. 2d 151 (Fla. 1st DCA 1998). In Chiles, the Commissioner of Education filed a declaratory statement with the Division of Elections in order to clarify a use of public funds. Arguing that the declaratory statement broadly regulated other candidates for statewide public office, Governor Chiles and Commissioner Milligan appealed the statement.

The court upheld the oft-stated edict that, if a declaratory statement raises an issue which is properly the subject of rulemaking, the agency should decline to issue the statement and initiate rulemaking instead.[14] However, the court clarified that a declaratory statement should not be rejected simply because it may address a subject of interest to more than just the petitioner. The court noted that the declaratory statement provision, [sections] 120.565, includes a requirement that the agency publish notice of its receipt of petitions and issuance of declaratory statements.[15] The court reasoned that such notice is required because the legislature anticipated that declaratory statements would be of interest to others beyond the petitioner.

Only a few weeks later, the Third District Court of Appeal revisited the debate over whether a declaratory statement violated its policy against broad applicability in Investment Corp. of Palm Beach v. Division of Pari-Mutuel Wagering, Dep't of Bus. and Professional Regulation, 714 So. 2d 589 (Fla. 1st DCA 1998). Although recognizing the Chiles decision, the court again found that a declaratory statement must be set aside because it...