The Deep Roots of Florida's Public Official Standing Doctrine and Its Vital Role in Preserving Our Constitutional Separation of Powers.

• Author: Harris, R. Todd

Florida's public official standing doctrine prohibits members of the executive branch from challenging the constitutionality of legislative action, unless the public official has suffered a personal injury. The doctrine was first clearly articulated by the Florida Supreme Court in State ex rel. Atlantic Coast Line Railway Co. v. State Board of Equalizers, 94 So. 681 (Fla. 1922). The purpose was to protect the power of judicial review, which is the "check" the judiciary provides to maintain our constitutional separation of powers. (1) More recently, in Sch. Dist. of Escambia County v. Santa Rosa Dunes Owners Assn, Inc., 274 So. 3d 492 (Fla. 1st DCA 2019), review denied, 2020 WL 1542086 (Fla. Apr. 1, 2020), the First District Court of Appeal re-examined and reaffirmed the importance of limiting the standing of executive branch officials to challenge legislative action. This article examines the history and purpose of the public official standing doctrine as well as its prominent role in recent rulings by the First District.

The public official standing doctrine was originally announced at a time when the power of judicial review was under attack by powerful political forces. Those forces were inspired by Teddy Roosevelt and driven by organized labor interests angered by the U.S. Supreme Court's exercise of judicial review in striking down multiple labor-friendly laws including, most notably, child labor laws. By the time Atlantic Coast Line came before Florida's high court in October 1922, organized labor had mounted an effective campaign at the federal level to elect congressional representatives who would support both legislation and constitutional amendments designed to abrogate, or at least severely limit, the power of judicial review.

The doctrine, as announced in Atlantic Coast Line, was broad in its prohibitions because the court, reacting in part to the fierce attacks by organized labor on a national level, sought to build a strong wall between the judiciary and the executive that would protect the power of judicial review. Almost 100 years later, in Santa Rosa Dunes, the First District, relying upon Atlantic Coast Line, rejected an attempt by the executive branch to erode the public official standing doctrine. Examining the history of the public official standing doctrine, particularly the political climate of 1922 into which it was born, illuminates why this doctrine is so important: It safeguards the power of judicial review, which preserves the separation of powers mandated by our state constitution, and prevents the executive branch from nullifying the laws it is required to faithfully execute.

Opposition to Judicial Review from the Beginning

Attacks on the power of judicial review are nearly as old as the power itself. Since the doctrine was first articulated in Marbury v. Madison, 5 U.S. 137 (1803), (2) legislators have debated both the wisdom of restraining the judicial power as well as the extent of their own power to impose those restraints. That debate first birthed legislation in 1823 when Senator Richard Johnson of Kentucky introduced a bill requiring that all justices must concur before the power of judicial review could be used to nullify the legislative acts of either the states or the federal government. (3)

After Senator Johnson's proposal failed, there were at least 14 other attempts by 19th century legislators to restrain the power of judicial review by requiring some form of supermajority consensus from the members of the Court to declare a law unconstitutional. (4) None were successful, but the tension between the legislative and judicial branches remained. Rapid industrialization of the U.S. economy at the end of the 19th century would contribute to a more intense scrutiny of the Court's power.

By the 1890s, the Second Industrial Revolution was at its apex. Factory owners demanded long hours for nominal wages. Increasingly intolerable labor conditions led to an explosion in labor union membership. The number of union members rose by over 400,000 between 1890 and 1900 to reach 993,000 members. (5) As the membership in unions grew, so did their political influence and their demands for legislation establishing minimum labor standards.

The State of New York passed the Bakeshop Act in 1895 regulating health conditions in bakeries and prohibiting employees from working more than 10 hours per day or 60 hours per week. In Lochner v. New York, 198 U.S. 45, 53 (1905), the Supreme Court struck down the law in a 5-4 decision finding that "[t]he general right to make a contract in relation to his business is part of the liberty of the individual protected by the 14th Amendment of the Federal Constitution." (6)

Former President Theodore Roosevelt decried the decision in a 1910 speech to the Colorado state legislature as being "against the democratic principles of government by the people under the forms of law." The fiery speech painted the Court as an overreaching enemy of social justice that refused to allow the "abuse" of poor working conditions to be remedied. (7)

After Roosevelt's speech, his friend and former Secretary of State Elihu Root queried in a letter to then-President Taft whether Roosevelt "really meant that he would, if he could, deprive the courts of the power to pass upon the constitutionality of laws"; a power that Root considered to be "the most valuable contribution of America to political science." (8) Taft was also alarmed by Roosevelt's comments, labeling "Theodore's" speech "an attack upon our system at the very point where I think it is strongest." (9)

Two years later, during his 1912 Bull-Moose Party run for the presidency, Roosevelt articulated a specific proposal to guard against instances in which "justice is resolutely denied by the courts." (10) With Lochner still clearly in mind, he proposed that if a law designed to "promote social and industrial justice" is declared unconstitutional on due process grounds, then "after a period...which could not be less than two years after the election of the legislature which passed the original law, the people themselves shall have the right to declare whether or not the proposed law is to be treated as constitutional." (11) Roosevelt further opined it was "the people, and not the judges who are entitled to say what their Constitution means...." (12) This was a clear challenge to the doctrine of judicial review by a former U.S. president.

While Roosevelt was bringing the concept of curtailing judicial power into the mainstream of the national political discourse, organized labor was chipping away at the power in more concrete ways on the state level. The territory of Arizona had struggled for decades to achieve statehood. In 1909, organized labor interests took up the struggle in earnest because they saw a labor-friendly state constitution as the surest way to prohibit unfriendly legislation. (13) Labor interests dominated Arizona's constitutional convention in 1910, which resulted in a proposed state constitution that included a clause providing for the popular recall of judges. Voters approved the proposal by a large majority. (14) The clause was demanded by labor interests so they could remove judges that blocked the implementation of labor-friendly legislation. (15) An angry Taft promptly vetoed the congressional resolution providing for the admission of Arizona as a state. He allowed Arizona's admission only after voters approved a constitution in which the recall provision was eliminated. (16) The fact that the clause had made it into the first constitution of Arizona at all showed the increasing influence of organized labor.

Post World War I, labor issues brought the power of judicial review to the forefront once more in the case of Hammer v. Dagenhart, 247 U.S. 251, 276 (1918), overturned, United States v. Darby, 312 U.S. 100 (1941). In that case, the Supreme Court considered the constitutionality of the Keating-Owing Act, passed in 1916. The act prohibited interstate commerce of any merchandise that had been made by children under the age of 14. In a 5-4 opinion, the Court struck down the act on the basis that Congress did not have the power under the Commerce Clause to regulate manufacturing within a state just because the products manufactured subsequently traveled in interstate commerce. (17)

Outrage over Hammer grew as the nation turned its attention from the Great War to domestic matters. No group was more vocal in its criticism than the American Federation of Labor (AFL) and its leader Samuel Gompers who called the decision in Hammer "a shock to the American people." Gompers insisted the nation "must regulate the veto power of the Supreme Court and eliminate an intolerable situation that allows five men to defeat the will of the nation." (18)

Hammer was a catalyst for a succession of new attempts to restrain the Court's power. (19) Those attempts included three unsuccessful tries by labor-friendly Arizona congressman Carl Hayden between 1918 and 1921 to pass a constitutional amendment that would have required a superma-jority vote of the Court in order to declare a law unconstitutional. (20)

Then in 1921, former President Taft was confirmed as chief justice of the Supreme Court. Chief Justice Taft saw the Supreme Court as entering a "period of agitation against its powers, such as it had in the period before [John] Marshall came onto the Bench," and he saw "labor organizations" as a source of that agitation. (21) His selection as chiefjustice signaled to the unions that the Court's opposition to labor-friendly legislation would likely continue. For labor interests and, more specifically the AFL, words of opposition were no longer sufficient. Going into the mid-term elections of 1922, it was time to take a more...