Quasi-judicial proceedings and constitutional rights: what is happening to separation of powers?

• Author: Downie, Robert C., II
• Position: Florida

The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.(1)

The above-quoted portion of the 1968 Constitution of the State of Florida (Constitution) is commonly referred to as the "separation of powers" doctrine. Florida's Constitution, unlike the U.S. Constitution, expressly and strongly states the separation doctrine.(2) The separation of powers provision was not new to the 1968 Constitution. The Florida Constitutions of 1885, 1868, and 1838 contained substantially similar statements.

This article will examine a recent Florida Supreme Court decision which appears to erode the concept of separation of powers. In Department of Agriculture & Consumer Services v. Bonanno, 568 So. 2d 24 (Fla. 1990), the court upheld a law which divested the Florida circuit courts of jurisdiction to determine full compensation in certain inverse condemnation cases. Overseeing protection of constitutional rights has historically been the function of the "courts" as that term is used in Art. V, [sections] 1 of the Constitution.(3) In Bonanno, however, the court ruled that determination of full compensation in a takings case may be performed by an administrative "quasi-judicial" entity. Such a ruling signals that it may be time to reinforce the concept of separation of powers.

The Role of the Judiciary

It falls to the judiciary to maintain the system of checks and balances in our government. The roles of the legislative and executive branches must be kept from infringing on each other and the judicial branch. In Florida cases dealing with separation of powers questions, there is a constant awareness of the precarious balance of power and the ease with which it can be skewed:

If the Judicial Department of the Government can take over the Legislative powers, there is no reason why it cannot also take over the Executive powers . . . . The tendency to reach out and grasp for power in the sphere of governmental activity; for one branch of government to encroach upon, or absorb, the powers of another, is the means by which free governments are destroyed . . . . It is the duty of the Judicial Department, more than any other, to maintain and preserve those provisions of the organic law for the separation of the three great departments of Government.(4)

Hence, the judiciary's role in government must be kept separate from the other branches. Despite this strong language, however, the separation of powers is not absolute. Some powers, such as the power to protect children, are shared by more than one branch.(5) Case law in Florida is clear, however, that functions or duties of one branch which are "exclusively," "fundamentally," or "purely" imbedded in that branch may not be shared by two or more branches.(6)

"Full Compensation"

Which governmental functions in Florida are "exclusively," "fundamentally," or "purely" judicial and which are not is to an extent a matter of interpretation: "The exclusive powers of the three branches of government are generally not delineated in the Constitution or in statutes. These powers are determined by considering the language and intent of the Constitution as well as the history, nature, powers, limitations, and purposes of our form of government."(7)

There should be no debate, though, about what are "fundamentally" judicial functions versus quasi-judicial functions in cases which involve constitutional rights. The Constitution guarantees every person access to "courts" for redress of "any injury."(8) If this guarantee applies to anything, it should apply to injuries involving constitutional rights.

Full compensation for a taking of property by the government is a constitutional right under the Florida and U.S. Constitutions.(9) The power to determine compensation due for a taking has long been considered a fundamentally judicial function. As stated in Daniels v. State Road Department, 170 So. 2d 846, 851 (Fla. 1964): "It is well settled that ... what is just compensation . . . `is a judicial function that cannot be performed by the Legislature either directly or by any method of indirection.'"(10)

The law at issue in Department of Agriculture and Consumer Services v. Bonanno was Chapter 89-91 of the Laws of Florida, which required parties who had healthy citrus plants destroyed by the State of Florida to prevent the spread of citrus canker to litigate their claims for full compensation before the Division of Administrative Hearings. Circuit Judge Robert Bonanno, before whom several such cases were pending, denied the state's motion to dismiss the cases and issued an order finding Ch. 89-91 unconstitutional. The state sought a writ of prohibition to prevent Judge Bonanno from exercising jurisdiction over the cases.

The Florida Supreme Court, in a four to three decision, granted the writ. The majority wrote that setting "just compensation" is a judicial...