In the District Court of Appeal of Florida First District

Filing # 92379665 E-Filed 07/11/2019 10:36:16 AM

IN THE DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT

FLA. HOUSE OF REPRESENTATIVES,

Appellant, CASE NO. 1D18-4994 v. L.T. Case Nos. 2017-CA-2549 FLORIGROWN LLC, et al.,

Appellees. /

HOUSE’S SECOND NOTICE OF SUPPLEMENTAL AUTHORITY

The appellant, the Florida House of Representatives, submits as supplemental

authority a decision of this Court and two decisions of the Supreme Court of Florida,

copies of which are attached to this notice. The supplemental authority is pertinent

to whether the federal standing case submitted by the appellees as supplemental

authority on June 24, 2019, has any bearing on this intervention appeal, even if there

were a question of standing in the context of state intervention. See Reinish v. Clark,

765 So. 2d 197, 202 (Fla. 1st DCA 2000) (“Florida does not adhere to the ‘rigid’

doctrine of standing used in the federal system.”); DOR v. Kuhnlein, 646 So. 2d 717,

RECEIVED, 07/11/201910:36:57 AM,Clerk,First DistrictCourtofAppeal 720 (Fla. 1994) (finding federal standing cases to be unpersuasive because the

doctrine of standing does not exist in Florida “in the rigid sense employed in the

federal system”); cf. Martinez v. Scanlan, 582 So. 2d 1167, 1170–71 & nn.1–2 (Fla.

1991) (noting “close question” regarding whether there is justiciable controversy between adverse parties, even though “no party has raised this issue” or objected, but “hesitantly” proceeding to decide case “given [its] importance” despite the filing of “myriad briefs from myriad parties, none of which now has an actual, pending controversy”).

Respectfully submitted,

/s/ Adam S. Tanenbaum ADAM S. TANENBAUM (FBN 117498) General Counsel [email protected] FLORIDA HOUSE OF REPRESENTATIVES 418 The Capitol 402 South Monroe Street Tallahassee, Florida 32399-1300 Phone: (850) 717-5500

Counsel for Appellant Florida House of Representatives

2 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 11th day of July, 2019, true copies of the foregoing second notice of supplemental authority and cases attached hereto were furnished to the Clerk of the Court through the Florida Courts eFiling Portal, which shall serve a copy via e-mail to the counsel listed below, constituting compliance with the service requirements of Florida Rule of Judicial Administration 2.516(b),

Florida Rule of Appellate Procedure 9.420(c), and this Court’s Administrative Order

19-1.

/s/ Adam S. Tanenbaum ADAM S. TANENBAUM ATTORNEY

3 Service List

KATHERINE E. GIDDINGS, ESQUIRE [email protected] [email protected] [email protected] AKERMAN LLP 106 East College Avenue, Suite 1200 Tallahassee, Florida 32301 (850) 224-9634 Counsel for Appellees Florigrown LLC and Voice of Freedom, Inc.

ARI H. GERSTIN, ESQUIRE [email protected] [email protected] AKERMAN LLP 98 Southeast Seventh Street, Suite 1100 Miami, Florida 33131 (305) 374-5600 Counsel for Appellees Florigrown LLC and Voice of Freedom, Inc.

JONATHAN S. ROBBINS, ESQUIRE [email protected] [email protected] AKERMAN LLP 350 East Las Olas Boulevard, Suite 1600 Fort Lauderdale, Florida 33301-2999 (954) 463-2700 Counsel for Appellees Florigrown LLC and Voice of Freedom, Inc.

4 JASON B. GONZALEZ, ESQUIRE [email protected] [email protected] RACHEL NORDBY, ESQUIRE [email protected] AMBER STONER NUNNALLY, ESQUIRE [email protected] SHUTTS & BOWEN LLP 215 South Monroe Street, Suite 804 Tallahassee, Florida 32301 (850) 521-0600 Counsel for Appellees Florida Department of Health, Director of Office of Medical Marijuana Use, and the State Surgeon General

LOUISE WILHITE-ST.LAURENT, ESQUIRE [email protected] FLORIDA DEPARTMENT OF HEALTH 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399 Counsel for Appellees

5 Reinish v. Clark, 765 So.2d 197 (2000) 25 Fla. L. Weekly D1726

privileges and immunities clause, and “dormant” commerce clause. U.S.C.A. 765 So.2d 197 Const. Art. 1, § 8, cl. 3; Art. 4, § 2, cl. District Court of Appeal of Florida, 1; U.S.C.A. Const.Amend. 14; West's F.S.A. First District. Const. Art. 7, § 6; West's F.S.A. §§ 86.021, Stanley REINISH and Carol Reinish, Appellants, 196.031. v. 1 Cases that cite this headnote John K. CLARK, in his official capacity as Tax Collector of Palm Beach County and as [2] Action representative of other county tax collectors Persons entitled to sue in the State of Florida; Gary Nikolits, in his Constitutional Law official capacity as Property Appraiser of Advisory Opinions Palm Beach County; and L.H. Fuchs, in his official capacity as Executive Director of State does not adhere to “rigid” doctrine of standing used in federal system; rather, Florida Department of Revenue, Appellees. general requirement for standing in Florida No. 1D98–3973. posits that every case must involve a real | controversy as to issue or issues presented, July 20, 2000. so that parties must not be requesting an advisory opinion. Synopsis Nonresident taxpayers brought action challenging 2 Cases that cite this headnote constitutionality of state homestead tax exemption. The Circuit Court, Leon County, P. Kevin Davey, J., [3] Taxation dismissed. On cross-appeals, the District Court of Appeal, De novo review Browning, J., held that: (1) taxpayers had standing; Trial court's rulings that state homestead tax (2) exemption did not violate equal protection clause; exemption did not, on its face, violate Federal (3) exemption did not violate privileges and immunities Constitution on any grounds asserted by clause; and (4) exemption did not violate “dormant” nonresident taxpayers were strictly questions commerce clause. of law to which a de novo standard of review applied. U.S.C.A. Const. Art. 1, § 8, cl. 3; Affirmed. Art. 4, § 2, cl. 1; U.S.C.A. Const.Amend. 14; West's F.S.A. Const. Art. 7, § 6; West's F.S.A. Benton, J., concurred and filed opinion. §§ 86.021, 196.031.

2 Cases that cite this headnote West Headnotes (29) [4] Civil Rights Other particular bases or classes [1] Declaratory Judgment Subjects of relief in general Corporations and Business Organizations Power to exclude, restrict, or regulate Nonresident taxpayers were not required to fulfill state's refund procedures to have State may not treat those within its borders standing to bring action seeking declaration unequally solely on basis of their different that constitutional and statutory requirement residences or states of incorporation. of establishing a state “permanent residence” Cases that cite this headnote to be eligible for homestead tax exemption violated federal equal protection clause,

States generally have considerable leeway to [5] Constitutional Law legislate classifications and to define lines Taxation and limits that, in their considered judgment, Taxation result in reasonable taxation systems. Effect of requirement of equality and uniformity Cases that cite this headnote Constitutional and statutory requirement of establishing a state “permanent residence” [9] Constitutional Law to be eligible for homestead tax exemption Rational Basis Standard; did not violate equal protection clause, Reasonableness as claimed by nonresident taxpayers who Unless a classification warrants some used their real property in state as a form of heightened review because it part-time residence, in light of historic, jeopardizes exercise of a fundamental right civic, and economic significance of need to or categorizes on basis of an inherently foster and protect primary residence of state suspect characteristic, equal protection clause homeowners, without an attendant need to requires only that the classification rationally give the same high level of protection to further a legitimate state interest. U.S.C.A. other types of residential properties. U.S.C.A. Const.Amend. 14. Const.Amend. 14; West's F.S.A. Const. Art. 7, § 6; West's F.S.A. § 196.031. Cases that cite this headnote

6 Cases that cite this headnote [10] Constitutional Law Taxation [6] Constitutional Law Tax exemption which does not jeopardize the Similarly situated persons; like exercise of a fundamental right and does not circumstances categorize on basis of an inherently suspect Equal protection clause does not forbid characteristic will be sustained over equal classifications; it simply keeps governmental protection challenge if legislature could have decisionmakers from treating differently reasonably concluded that the challenged persons who are in all relevant respects alike. classification would promote a legitimate state U.S.C.A. Const.Amend. 14. purpose. U.S.C.A. Const.Amend. 14.

Cases that cite this headnote Cases that cite this headnote

[7] Constitutional Law [11] Constitutional Law Equal protection Taxation As a general rule, legislatures are presumed Relaxed “rational basis” standard for to have acted within their constitutional equal protection challenge is particularly power despite the fact that, in practice, their deferential concerning classifications made laws result in some inequality. U.S.C.A. in complicated tax matters. U.S.C.A. Const.Amend. 14. Const.Amend. 14.

Cases that cite this headnote Cases that cite this headnote

[8] Taxation [12] Constitutional Law Classification of Subjects, and Statutes and other written regulations Uniformity as to Subjects of Same Class and rules

Under “rational basis” standard for not sufficient to defeat the law as violative equal protection challenge, states are not of privileges and immunities clause. U.S.C.A. required to convince courts of correctness Const. Art. 4, § 2, cl. 1. of their legislative judgments; instead, those challenging legislative judgment must Cases that cite this headnote convince court that legislative facts on which classification is apparently based could [16] Constitutional Law not reasonably be conceived to be true Rights or Privileges Protected by governmental decisionmaker. U.S.C.A. Only with respect to those privileges and Const.Amend. 14. immunities bearing upon vitality of nation as Cases that cite this headnote a single entity must the state treat all citizens, resident and nonresident, equally. U.S.C.A. Const. Art. 4, § 2, cl. 1. [13] Constitutional Law Privileges and Immunities of Citizens of Cases that cite this headnote the Several States (Article ) Privileges and immunities clause sets out [17] Constitutional Law a norm of comity or substantial equality Particular Issues and Applications of treatment without indicating specifically Constitutional Law the subjects over which nonresidents coming Taxation within jurisdiction of another state are to be Right to take, hold, and dispose of property, accorded equal treatment. U.S.C.A. Const. either real or personal, and an exemption from Art. 4, § 2, cl. 1. higher taxes or impositions than are paid by Cases that cite this headnote other citizens of state is protected by privileges and immunities clause. U.S.C.A. Const. Art. 4, § 2, cl. 1. [14] Constitutional Law Taxation Cases that cite this headnote Taxation Effect of requirement of equality and [18] Constitutional Law uniformity Taxation In determining whether state homestead Taxation tax exemption scheme infringed upon rights Constitutional Provisions guaranteed by privileges and immunities Constitutional and statutory requirement of clause, District Court of Appeal was required establishing a state “permanent residence” to to consider operation and effect of law as be eligible for homestead tax exemption did applied and enforced by state. U.S.C.A. not violate privileges and immunities clause, Const. Art. 4, § 2, cl. 1; West's F.S.A. Const. as claimed by nonresident taxpayers who Art. 7, § 6; West's F.S.A. § 196.031. used their real property in state as a part- 2 Cases that cite this headnote time residence, where those nonresidents who wished to buy, keep, or dispose of state secondary residences were treated on terms of [15] Constitutional Law substantial equality with state residents under Taxation challenged provisions. U.S.C.A. Const. Art. Inequalities that result not from hostile 4, § 2, cl. 1; West's F.S.A. Const. Art. 7, § 6; discrimination, but occasionally and West's F.S.A. § 196.031. incidentally in application of a tax system that is not arbitrary in its classification, are

Under “dormant” commerce clause analysis, 1 Cases that cite this headnote where a state or local law discriminates against out-of-state commerce, the presumption that [19] Commerce the intent of law is permissible is reversed, Constitutional Grant of Power to and state or local entity must demonstrate that Congress it has a strong, legitimate local concern that warrants discrimination. U.S.C.A. Const. Commerce Art. 1, § 8, cl. 3. Powers Remaining in States, and Limitations Thereon Cases that cite this headnote Commerce clause constitutes an affirmative grant of power to Congress, but it also [23] Commerce has a negative or dormant aspect, which Local matters affecting commerce severely limits extent to which states or local governments can discriminate against, unduly Under “dormant” commerce clause analysis, burden, tax, or otherwise interfere with even where a state or local regulation is not per interstate commerce or engage in economic se discriminatory, court must decide whether isolationism, even in absence of exercise of regulation substantially burdens interstate Congress' affirmative power. U.S.C.A. Const. commerce while the local benefits appear Art. 1, § 8, cl. 3. insubstantial. U.S.C.A. Const. Art. 1, § 8, cl. 3.

Cases that cite this headnote Cases that cite this headnote

[20] Commerce [24] Commerce Powers Remaining in States, and Powers Remaining in States, and Limitations Thereon Limitations Thereon First step in assessing whether a state or local If burden on interstate commerce clearly regulation violates “dormant” commerce outweighs potential benefits of state or clause involves determination of whether local regulation which is not per se the regulation treats out-of-state commerce discriminatory, regulation will be found differently. U.S.C.A. Const. Art. 1, § 8, cl. 3. deficient under “dormant” commerce clause. U.S.C.A. Const. Art. 1, § 8, cl. 3. Cases that cite this headnote Cases that cite this headnote

[21] Commerce Preferences and Discriminations [25] Commerce Powers Remaining in States, and Under “dormant” commerce clause analysis, Limitations Thereon “discrimination” refers to differential treatment, such as where a state or local Dormant aspect of commerce clause provides regulation places a greater economic burden protection for persons, not just for goods, that on those outside state, with an attendant move across state borders; it is immaterial economic advantage to those within state. whether the transportation is of a commercial U.S.C.A. Const. Art. 1, § 8, cl. 3. or profit-making nature. U.S.C.A. Const. Art. 1, § 8, cl. 3. Cases that cite this headnote Cases that cite this headnote

[22] Commerce Preferences and Discriminations [26] Commerce

Powers Remaining in States, and legitimate, strong public interest in promoting Limitations Thereon stability and continuity of the primary Dormant aspect of commerce clause covers permanent home. U.S.C.A. Const. Art. 1, § 8, and protects markets and participants cl. 3; West's F.S.A. Const. Art. 7, § 6; West's in markets, including those engaged in F.S.A. § 196.031. competition for real natural resources such as 3 Cases that cite this headnote real estate. U.S.C.A. Const. Art. 1, § 8, cl. 3.

Cases that cite this headnote

Attorneys and Law Firms [27] Commerce Taxation of Property *201 C. Oliver Burt, III of Burt & Pucillo, L.L.P., Tax on real estate, like any other tax, may West Palm Beach; James K. Green of James K. impermissibly burden interstate commerce, Green, P.A., West Palm Beach; M. David Gelfand, and fact that tax discrimination comes in New Orleans, Louisiana; Michael J. Freed, of Much, form of a deprivation of a generally available Shelist, Freed, Deneberg, Ament, Bell & Rubenstein, P.C., tax benefit, rather than a specific penalty on Chicago, Illinois; and Harry O. Thomas, of Katz, Kutter, activity itself, is of no moment. U.S.C.A. Haigler, Alderman, Bryant & Yon, P.A., Tallahassee, for Const. Art. 1, § 8, cl. 3. Appellants.

Cases that cite this headnote Robert A. Butterworth, Attorney General; Joseph C. Mellichamp, III, Senior Assistant Attorney General; and Jarrell L. Murchison, Assistant Attorney General, [28] Commerce Tallahassee, for Appellees. Preferences and Discriminations Finding that state legislation constitutes Opinion economic protectionism in violation of commerce clause may be made on BROWNING, J. basis of either discriminatory purpose or Stanley and Carol Reinish, who were the plaintiffs in the discriminatory effect. U.S.C.A. Const. Art. 1, lower court, appeal a final order dismissing their second § 8, cl. 3. amended complaint with prejudice. In his official capacity Cases that cite this headnote as Executive Director of the Florida Department of Revenue, L.H. Fuchs, one of the defendants below, cross- appeals those portions of the final order finding that the [29] Commerce circuit court had subject-matter jurisdiction and that the Taxation of Property Reinishes had standing to bring a facial challenge testing Taxation the validity of the Florida homestead tax exemption. Constitutional Provisions Concluding that the trial court had jurisdiction pursuant Constitutional and statutory requirement of to Chapter 86, Florida Statutes, and that the Reinishes establishing a state “permanent residence” had standing to bring a facial constitutional challenge, to be eligible for homestead tax exemption we affirm the lower court's rulings as to those issues did not violate “dormant” commerce clause, raised on cross-appeal. Likewise, we conclude that the as claimed by nonresident taxpayers who trial court correctly found the Reinishes' three theories of used their real property in state as a part- unconstitutionality to be without legal merit. Accordingly, time residence; exemption was not per se we affirm the order dismissing the second amended discriminatory against interstate commerce, complaint with prejudice. as exemption did not treat local and interstate commerce differently, and exemption was an even-handed regulation that promoted the

the assessment was certified for collection in any of the tax years in question. § 194.171(2), Fla. Stat. On JURISDICTION AND STANDING that basis, the defendants moved to dismiss for lack In their second amended complaint, the Reinishes asserted of subject-matter jurisdiction. § 194.171(6), Fla. Stat. circuit-court jurisdiction pursuant to Article V, section Furthermore, the defendants argued that the Reinishes 20(c)(3), of the Florida Constitution, and section 26.012, lacked standing because they neither alleged compliance Florida Statutes (1997), both of which address “cases with the procedures governing the annual application involving legality of any tax assessment or toll”; and for homestead tax exemption under section 196.011(1), pursuant to sections 86.011, 86.021, and 86.061, Florida Florida Statutes (1997), for creating a case or controversy; Statutes (1997), the Declaratory Judgments Act. Their nor did they claim to have been denied the homestead tax exemption after filing a timely, written application for one. action sought a declaration that the constitutional 1 and 2 statutory Florida homestead tax exemption provisions [1] The trial court found that it had subject-matter violate the federal Equal Protection Clause, the Privileges jurisdiction under Chapter 86. In support of this finding, and Immunities Clause, and the “dormant” Commerce the Reinishes properly rely on well-established case law Clause to the extent that the homestead tax exemption is holding that in actions such as this, where the facial available only to certain permanent residents of Florida. constitutionality of a tax or tax exemption provision is In addition to a declaration of the rights of the parties and challenged, “fulfilling the state's refund procedures is not injunctive relief, the Reinishes sought an accounting by the a condition precedent to bringing a constitutionally-based defendants and a refund of such portions of the residential refund action.” Public Medical Assistance Trust Fund real estate taxes paid by the Reinishes and their class that v. Hameroff, 689 So.2d 358, 359 (Fla. 1st DCA 1997), they would not have been required to pay if the homestead approved in pertinent part, 736 So.2d 1150 (Fla.1999); 3 tax exemption had been available to them. Department of Revenue v. Nemeth, 733 So.2d 970, 973– 74 (Fla.1999). The Reinishes are neither challenging their 1 Art. VII, § 6, Fla. Const. assessment nor seeking an exemption for which they claim present entitlement. Rather, they are challenging the 2 Section 196.031, Fla. Stat. (1997). constitutional and statutory requirement of establishing a Florida “permanent residence” to be eligible for 3 Venue in this case was transferred from Palm Beach County to Leon County. the homestead tax exemption. Situations such as this constitute an exception to the general rule that requires At the onset of this litigation and at all times pertinent a party first to seek, and then be denied, a refund before to this action, the Reinishes have remained residents of suing for a tax refund. See Department of Revenue v. Chicago, Illinois. Around September 1994, they bought a Kuhnlein, 646 So.2d 717, 720 (Fla.1994) (rejecting State's parcel of real estate in Palm Beach County, Florida, for argument that class action was barred jurisdictionally use as a part-time residence. Since then, they have paid in circuit court because none of class representatives real estate taxes as assessed on the Florida property but had applied for refund pursuant to statutory provisions); have been ineligible to receive an exemption of the first Hameroff, 689 So.2d at 359; State ex rel. Devlin v. $25,000 of assessed value because their use of the Florida Dickinson, 305 So.2d 848 (Fla. 1st DCA 1974). Given property does not qualify it as a “permanent residence.” the reasoning set forth in the supreme court's Kuhnlein § 196.031(3)(d), Fla. Stat. The Reinishes admit that they opinion, the trial court properly found jurisdiction over stay in the Florida property only about 4–5 months each the instant action. year and reside in Illinois for the greater part of the year. [2] Kuhnlein, 646 So.2d at 717, as well as several earlier In the trial court, Executive Director Fuchs and the supreme court decisions, also supports the trial court's other defendants argued 1) *202 that the Reinishes finding that the Reinishes have standing to challenge could not circumvent the jurisdictional requirements the Florida homestead tax exemption provisions. Florida of section 194.171, Florida Statutes (1997), by seeking does not adhere to the “rigid” doctrine of standing used relief in the form of a refund under Chapter 86; and in the federal system. See id. at 720. Rather, the general 2) that the Reinishes failed to allege that they had requirement for standing in Florida posits that “every case contested their assessment within 60 days from the date

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 Reinish v. Clark, 765 So.2d 197 (2000) 25 Fla. L. Weekly D1726 must involve a real controversy as to the issue or issues v. Children A, B, C, D, E, and F, 589 So.2d 260, 263 n. presented,” so that “the parties must not be requesting 5 (Fla.1991) (“This Court has long held that a citizen an advisory opinion.” Id. at 720–21. In a seminal 1952 and taxpayer can challenge the constitutional validity decision, the supreme court set out the Florida rule: of an exercise of the legislature's taxing and spending power without having to demonstrate a special injury.”). In determining that nothing in Florida law required the Before any proceeding for plaintiffs in Kuhnlein to pay the impact fee or to request declaratory relief should be a refund to gain standing, the supreme court found it entertained it should be clearly sufficient “that these plaintiffs face penalties for failure made to appear that there is a to pay an allegedly unconstitutional tax.” 646 So.2d at bona fide, actual, present practical 720. Similarly, the Reinishes alleged that they have had need for the declaration; that the to pay more than their lawful share of taxes because declaration should deal with a of a tax exemption that unconstitutionally discriminates present, ascertained or ascertainable against them based on their out-of-state residency. Their state of facts or present controversy being assessed full property taxes annually, without the as to a state of facts; that benefit of the homestead tax exemption, created a bona some immunity, power, privilege or fide, actual, present, and practical need for the declaration right of the complaining party is sought. dependent upon the facts or the law applicable to the facts; that there is some person or persons who have, STANDARD OF REVIEW or reasonably may have an actual, present, adverse and antagonistic [3] The challenged final order dismissing the second interest in the subject matter, either amended complaint for failure to state a claim is premised in fact or law; that the antagonistic entirely upon the trial court's conclusion that the Florida and adverse interests are all before homestead tax exemption does not, on its face, violate the the court by proper process or class United States Constitution on any of the grounds asserted representation and that the relief by the plaintiffs. Therefore, the lower tribunal's rulings sought is not merely the giving of are strictly questions of law to which a de novo standard legal advice by the courts or the of review applies. See Brewer v. Clerk of Circuit Court, answers propounded from curiosity. Gadsden County, 720 So.2d 602, 603 (Fla. 1st DCA 1998). These elements are necessary as being judicial in nature and *203 therefore within the constitutional COUNT ONE powers of the courts. [4] [5] The first count alleged that in denying the homestead tax exemption to the Reinishes and their class May v. Holley, 59 So.2d 636, 639 (Fla.1952); Martinez solely on the basis of their out-of-state residency, the v. Scanlan, 582 So.2d 1167 (Fla.1991). The Declaratory constitutional and statutory homestead provisions have Judgments Act is “substantive and remedial,” with a created a classification and/or distinction that is wholly purpose “to settle and to afford relief from insecurity arbitrary and discriminatory, thereby denying equal and uncertainty with respect to rights, status, and other protection of the law as guaranteed by the Fourteenth equitable or legal relations,” and the Act is “to be liberally Amendment to the United States Constitution. 4 “A State administered and construed.” § 86.101, Fla. Stat. (1997). may not treat those within its borders unequally solely Individuals can challenge the validity of a statute in a on the basis of their different residences or States of declaratory action. § 86.021, Fla. Stat. (1997). incorporation.” Williams v. Vermont, 472 U.S. 14, 23, 105 S.Ct. 2465, 86 L.Ed.2d 11 (1985); Metropolitan Life Ins. We conclude that the Reinishes clearly have satisfied the Co. v. Ward, 470 U.S. 869, 105 S.Ct. 1676, 84 L.Ed.2d standing requirements of May and its progeny. See Chiles 751 (1985); WHYY, Inc. v. Borough of Glassboro, 393 U.S.

117, 89 S.Ct. 286, 21 L.Ed.2d 242 (1968). For reasons that from a singling out of one particular class for taxation are set forth, infra, we find no such defects in the Florida or exemption, infringe no constitutional limitation.”); homestead tax exemption scheme. Lawrence v. State Tax Comm'n, 286 U.S. 276, 284, 52 S.Ct. 556, 76 L.Ed. 1102 (1932); Bell's Gap, 134 U.S. at 237, 10 4 The Clause mandates that no state shall “deny to any S.Ct. 533; Rojas v. Fitch, 928 F.Supp. 155 (D.R.I.1996). person within its jurisdiction the equal protection of The Court in Carmichael added: the laws.” Art. XIV, § 1, U.S. Const. [6] [7] [8] It is an undeniable fact of life that many, if not most, laws distinguish or classify among classes Like considerations govern of persons. See Heisler v. Thomas Colliery Co., 260 U.S. exemptions from the operation of 245, 254–55, 43 S.Ct. 83, 67 L.Ed. 237 (1922); Bell's Gap a tax imposed on the members of R. Co. v. Pennsylvania, 134 U.S. 232, 237, 10 S.Ct. 533, a class. A legislature is not bound 33 L.Ed. 892 (1890). “The Equal Protection Clause does to tax every member of a class or not forbid classifications. It simply keeps governmental none. It may make distinctions of decisionmakers from treating differently persons who are degree having a rational basis, and in all relevant respects alike.” *204 Nordlinger v. Hahn, when subjected to judicial scrutiny 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992) (Equal they must be presumed to rest on Protection Clause not violated by California property that basis if there is any conceivable tax system in which assessed value could increase only state of facts which would support it. two per cent a year except in cases of improvements or change of ownership). As a general rule, “legislatures are presumed to have acted within their constitutional power 301 U.S. at 509, 57 S.Ct. 868. In light of these rules, the despite the fact that, in practice, their laws result in some High Court “has been reluctant to interfere with legislative inequality.” McGowan v. Maryland, 366 U.S. 420, 425–26, policy decisions in this area.” Williams, 472 U.S. at 22, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). Consonant with this is 105 S.Ct. 2465; Regan v. Taxation With Representation of another rule that states generally have considerable leeway Washington, 461 U.S. 540, 103 S.Ct. 1997, 76 L.Ed.2d 129 to legislate classifications and to define lines and limits (1983). that, in their considered judgment, result in reasonable taxation systems. See Lehnhausen v. Lake Shore Auto [9] [10] [11] As the Florida homestead tax exemption Parts Co., 410 U.S. 356, 93 S.Ct. 1001, 35 L.Ed.2d 351 scheme imposes no meaningful restriction upon the (1973); Heisler, 260 U.S. at 255, 43 S.Ct. 83; Watson v. Reinishes' fundamental right to travel or upon any other State Comptroller of New York, 254 U.S. 122, 124–25, fundamental right, the burden does not fall upon the State 41 S.Ct. 43, 65 L.Ed. 170 (1920). As the United States to show its compelling interest justifying the law. The Supreme Court has indicated on numerous occasions: Court's equal protection jurisprudence clearly indicates:

It is inherent in the exercise of the [U]nless a classification warrants power to tax that a state be free some form of heightened review to select the subjects of taxation because it jeopardizes exercise of and to grant exemptions. Neither a fundamental right or categorizes due process nor equal protection on the basis of an inherently imposes upon a state any rigid rule suspect characteristic, the Equal of equality of taxation. Protection Clause requires only that the classification rationally further a legitimate state interest. Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 509, 57 S.Ct. 868, 81 L.Ed. 1245 (1937) (“This Court has repeatedly held that inequalities which result Nordlinger, 505 U.S. at 10, 112 S.Ct. 2326; Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439–

41, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); Hooper Florida real-estate parcel, or Florida residents who use v. Bernalillo County Assessor, 472 U.S. 612, 105 S.Ct. Florida real property as a secondary, seasonal, or vacation 2862, 86 L.Ed.2d 487 (1985); New Orleans v. Dukes, 427 residence. A property owner does not have to be a citizen U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976). Stated of the United States to be eligible for the homestead another way, a tax exemption such as the one challenged tax exemption, and there is no durational residency here “will be sustained if the legislature could have requirement. See Smith v. Voight, 158 Fla. 366, 28 So.2d reasonably concluded that the challenged classification 426 (1946). would promote a legitimate state purpose.” Exxon Corp. v. Eagerton, 462 U.S. 176, 196, 103 S.Ct. 2296, 76 L.Ed.2d 5 “ ‘Permanent resident’ means a person who has 497 (1983); Williams, 472 U.S. at 22–23, 105 S.Ct. 2465. established a permanent residence as defined in The relaxed “rational basis” standard is consonant with subsection (18).” § 196.012(17), Fla. Stat. (1997). the understanding that making distinctions is an inherent, “ ‘Permanent residence’ means that place where a unavoidable legislative function, see Ohio Bureau of person has his or her true, fixed, and permanent Employment Servs. v. Hodory, 431 U.S. 471, 489, 97 home and principal establishment to which, whenever S.Ct. 1898, 52 L.Ed.2d 513 (1977), and this standard is absent, he or she has the intention of returning. A particularly deferential *205 concerning classifications person may have only one permanent residence at a made in complicated tax matters, see Nordlinger, 505 time; and, once a permanent residence is established U.S. at 11, 112 S.Ct. 2326, for “in structuring internal in a foreign state or country, it is presumed to continue until the person shows that a change has tax schemes ‘the States have large leeway in making occurred.” § 196.012(18), Fla. Stat. classifications and drawing lines which in their judgment produce reasonable systems of taxation.’ ” Williams, 472 The New Jersey Supreme Court's lucid analysis of an equal U.S. at 22, 105 S.Ct. 2465, quoting Lehnhausen, 410 U.S. protection challenge to the New Jersey Homestead Rebate at 359, 93 S.Ct. 1001. Act in Rubin v. Glaser, 83 N.J. 299, 416 A.2d 382, app. dism., 449 U.S. 977, 101 S.Ct. 389, 66 L.Ed.2d 239 (1980), By its express terms, the constitutional provision supports our conclusion that the Florida homestead tax governing the Florida homestead tax exemption applies to exemption provisions do not offend equal protection real estate that is maintained as the “permanent residence” guarantees. The Act in Rubin limited the homestead of the legal or equitable titleholder or of “another legally rebate to dwelling houses (and the land on which they or naturally dependent upon the owner.” No more than were situated) owned and used by domiciliaries as their one exemption shall be allowed to any individual or with “principal residence.” Id. at 383. The plaintiffs were respect to any residential unit. Art. VII, § 6, Fla. Const. residents of Pennsylvania who maintained their domicile (1968). The parallel statute likewise addresses only real there. They acquired a New Jersey vacation home, which property on which the person with legal title or beneficial they occupied for 4–5 weeks during the summer and title in equity, or on which another or others who are intermittently at other times of the year. They admitted “legally or naturally dependent upon such person,” resides that they did not satisfy the statutory criteria for a tax rebate. After they were denied a rebate of real property and in good faith makes a “permanent residence.” 5 § taxes on their New Jersey summer house, they filed a 196.031(1), Fla. Stat. (1997); Op. Att'y Gen. Fla. 82– claim with the local tax assessor, which was rejected. Id. 27 (1982). The underlying classification in the exemption Addressing their claim that the Act denied the plaintiffs provisions is based primarily on the use of the property equal protection, the New Jersey Supreme Court made the rather than on the user. Whether the person is a Florida following threshold determination: resident or not, only one homestead exemption is allowed, irrespective of how many other residences the person owns. Thus, the exemption distinguishes between real estate used in good faith as a Florida permanent residence, Denial of a homestead rebate on on the one hand, and (by implicit exclusion) any other a vacation home does not rise real estate such as secondary or vacation residences or to the level of a deprivation rentals, on the other hand. In other words, the Florida of “a basic necessity of life” exemption treats the Reinishes no differently from either or of a “fundamental” right. Florida residents who rent, rather than own, a particular Furthermore, the homestead rebate

is not denied to those persons, and clearly the State purpose(s) underlying the exemption. only those *206 persons, who have Furthermore, they suggest that the purpose set forth by exercised their constitutional right the appellee is merely an unsupported, ad hoc argument of interstate migration.... Moreover, invented as a part of the litigation strategy. In determining the Act contains no residential the basis for a classification, courts sometimes must durational element of the type which look beyond the language of the provision in question, has been held invalid where the especially where the creators of the provision have not individual has been required to included a clear statement of purpose for enacting or have resided within the state for a revising it. In this regard, the United States Supreme minimum period of time. Court has stated that “the Equal Protection Clause does not demand for purposes of rational-basis review that a legislature or governing decisionmaker actually Id. at 387. Given this finding, the court assessed the articulate at any time the purpose or rationale supporting Act under the lenient “rational relationship” test and its classification.” Nordlinger, 505 U.S. at 15, 112 S.Ct. acknowledged the “broad deference accorded legislation 2326. Given the lack of a formal statement of purpose with respect to taxation programs.” Id. The court in the challenged provisions, we must look instead to the determined that the Act represented the New Jersey origins and subsequent history of the Florida homestead legislature's “attempt to blunt escalating property taxes tax exemption to determine whether the difference in that threaten a family's ability to continue living in treatment between Florida permanent residences and their home,” and it concluded that reducing the tax other real estate has a “legitimate state purpose.” burden for that basic purpose while denying relief to “less essential types of residential property ownership” “The home has a history of special significance in fell within the ambit of legislative discretion. See id. at Florida law.” Osterndorf v. Turner, 426 So.2d 539, 541 388. A similar rationale supports the Florida homestead (Fla.1982) (chronicling history of Florida provisions tax exemption provisions' distinction between permanent protecting homestead realty from forced sale and residences and other less essential types of residential establishing homestead tax exemption); Donna Litman property ownership. Seiden, “There's No Place Like Home(stead) in Florida– Should It Stay That Way?” 18 Nova L.Rev. 801 (1994). [12] “States are not required to convince the courts of The current language in the Florida Constitution provides the correctness of their legislative judgments.” State of for a homestead exemption of $25,000 (of the assessed Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464, value of the homestead) from taxes levied by governing 101 S.Ct. 715, 66 L.Ed.2d 659 (1981) (Minnesota statute bodies. Art. VII, § 6, Fla. Const. (1968). Public policy banning retail sale of milk in plastic, non-returnable, non- considerations favor laws protecting the basic homestead, refillable containers, but permitting such sale in other non- which “promote the stability *207 and welfare of returnable, non-refillable containers such as paperboard the state by encouraging property ownership and milk cartons, did not violate Equal Protection Clause, independence on the part of the citizen and by preserving where legislative classification was rationally related to a home where the family may be sheltered and live beyond achievement of statutory purposes such as fostering the reach of economic misfortune.” Bigelow v. Dunphe, greater use of environmentally desirable alternatives). 143 Fla. 603, 197 So. 328, 330 (1940); Public Health Trust Instead, “those challenging the legislative judgment must of Dade County v. Lopez, 531 So.2d 946 (Fla.1988); Collins convince the court that the legislative facts on which the v. Collins, 150 Fla. 374, 7 So.2d 443, 444 (1942); Law classification is apparently based could not reasonably be v. Law, 738 So.2d 522 (Fla. 4th DCA 1999); Myers v. conceived to be true by the governmental decisionmaker.” Lehrer, 671 So.2d 864 (Fla. 4th DCA 1996) (recognizing Vance v. Bradley, 440 U.S. 93, 111, 99 S.Ct. 939, 59 purpose of homestead provision is protection of the L.Ed.2d 171 (1979). family); George L. Haskins, “Homestead Exemptions” 63 Harv. L.Rev. 1289, 1289 (1950) (“The principle objective In attacking the validity of the homestead tax exemption, of the homestead laws is generally regarded as the security the Reinishes contend that the Florida constitutional and of the family, which in turn benefits the community to statutory provisions are deficient for failure to set out the extent that such security prevents pauperism and

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 10 Reinish v. Clark, 765 So.2d 197 (2000) 25 Fla. L. Weekly D1726 provides the members of the family with some measure concerned.” Paul v. Virginia, 75 U.S. 168, 180, 19 L.Ed. of security and independence.”). Mindful of the historic, 357 (1869). civic, and economic significance of the need to foster and protect the primary residence of Florida homeowners, In an early leading case, Circuit Justice Washington without an attendant need to give the same high level construed the Clause as entitling the citizens of the several of protection to other types of residential properties, we states only to conclude, as did the trial court, that the Florida homestead tax exemption's classification has some reasonable basis and does not offend equal protection concerns. The those privileges and immunities law-makers reasonably could have concluded that the which are, in their nature, challenged classification would promote a legitimate State fundamental; which belong, of purpose. Accordingly, the count based on the Equal right, to the citizens of all free Protection Clause was properly dismissed with prejudice. governments; and which have, at all times, been enjoyed by the citizens of the several states which compose COUNT TWO this Union, from the time of their becoming free, independent, and The second count of the second amended complaint sovereign. alleged that the Florida constitutional and statutory homestead tax exemption provisions unconstitutionally infringe upon the fundamental rights to travel interstate Corfield v. Coryell, 6 F. Cas. 546, 551 (C.C.E.D.Pa.1823). and to own property, in violation of the Privileges and Justice Washington included among these “fundamental” Immunities Clause of Article IV, Section 2, United States privileges and immunities “the right of a citizen of one Constitution. 6 The Reinishes contend that the Florida state ... to take, hold and dispose of property, either real provisions discriminate impermissibly between full-time or personal; and *208 an exemption from higher taxes residents and part-time residents of the State and bear or impositions than are paid by the other citizens of the no rational connection to any valid concerns of the state.” Id. at 552; Ward v. Maryland, 79 U.S. 418, 430, defendants. 20 L.Ed. 449 (1870); Paul, 75 U.S. at 180 (interpreting Privileges and Immunities Clause as ensuring the citizens

6 This Clause states, in pertinent part: “The Citizens of one state the same freedom possessed by the citizens of each State shall be entitled to all Privileges and of another state “in the acquisition and enjoyment of Immunities of Citizens in the several States.” Art. IV, property and in the pursuit of happiness”). For purposes § 2, Clause 1, U.S. Const. This provision is separate of analysis of most cases under this Clause, the terms and distinct from the “privileges or immunities” “resident” and “citizen” are “essentially interchangeable.” provision in Article XIV, section 1, United States United Bldg. & Constr. Trades Council of Camden County Constitution. and Vicinity v. Mayor and Counsel of City of Camden, [13] The Privileges and Immunities Clause sets out “a 465 U.S. 208, 216, 104 S.Ct. 1020, 79 L.Ed.2d 249 (1984). norm of comity” or “substantial equality of treatment” The United States Supreme Court has made it clear that without indicating specifically the subjects over which especially in taxation matters, “legislatures possess the non-residents coming within the jurisdiction of another greatest freedom in classification.” Madden v. Kentucky, state are to be accorded equal treatment. See Austin v. 309 U.S. 83, 88, 60 S.Ct. 406, 84 L.Ed. 590 (1940). New Hampshire, 420 U.S. 656, 660 & 665, 95 S.Ct. 1191, Accordingly, the Court generally has exercised a narrow 43 L.Ed.2d 530 (1975). The Founding Fathers deemed it review of tax classifications “to fit the broad discretion critical to unite the citizens of the various states into one vested in the state legislatures.” Austin, 420 U.S. at 662, union, and “it was undoubtedly the object of the clause 95 S.Ct. 1191. Even so, where a tax provision is alleged in question to place the citizens of each state upon the to be “an undue burden on an activity granted special same footing with citizens of other states, so far as the constitutional recognition,” the Court has indicated that advantages resulting from citizenship in those states are “the appropriate degree of inquiry is that necessary to protect the competing constitutional value from erosion.”

Austin, 420 U.S. at 662, 95 S.Ct. 1191; Lehnhausen, 410 a[tax] system that is not arbitrary in its classification, are U.S. at 359, 93 S.Ct. 1001. not sufficient to defeat the law.” Maxwell v. Bugbee, 250 U.S. 525, 543, 40 S.Ct. 2, 63 L.Ed. 1124 (1919). As with [14] [15] In determining whether the Florida homestead welfare benefits or free public education, a State is free tax exemption scheme infringes upon rights guaranteed by to grant public assistance to bona-fide residents without the United States Constitution, we must regard substance providing it to others who do not have permanent ties over mere form. This requires us to consider “the to the State. See Attorney General of New York v. Soto– operation and effect of the law as applied and enforced Lopez, 476 U.S. 898, 903 n. 3, 106 S.Ct. 2317, 90 L.Ed.2d by the State.” Lunding v. New York Tax Appeals Tribunal, 899 (1986); Martinez v. Bynum, 461 U.S. 321, 103 S.Ct. 522 U.S. 287, 296, 118 S.Ct. 766, 139 L.Ed.2d 717 (1998), 1838, 75 L.Ed.2d 879 (1983). quoting Shaffer v. Carter, 252 U.S. 37, 55, 40 S.Ct. 221, 64 L.Ed. 445 (1920); St. Louis Southwestern R. Co. v. 7 We note that the mere fact that the Florida homestead Arkansas, 235 U.S. 350, 362, 35 S.Ct. 99, 59 L.Ed. 265 tax exemption disadvantages some Florida residents (1914). The first step in the analysis under the Clause too does not necessarily immunize the provisions is to determine whether the homestead tax exemption from constitutional review in a challenge by similarly distinguishes between Florida residents and non-residents. disadvantaged non-residents. See United Building, See Lunding, 522 U.S. at 297–98, 118 S.Ct. 766. The 465 U.S. at 217–18, 104 S.Ct. 1020. Reinishes assert that they are not treated substantially [16] [17] If we assume arguendo that the homestead tax equally with Florida residents under the homestead tax exemption scheme's classification of Florida permanent exemption scheme because they are non-residents. In residences separately from other Florida properties response, the appellee contends that the exemption does discriminates against non-Florida residents, the second not discriminate against non-residents at all, i.e., no one step in the analysis under the Clause would require (whether Florida resident or non-resident) receives an us to determine whether the exemption provisions are exemption for a home that is not used as a permanent prohibited “because they hinder the formation, the residence. Although the Reinishes are non-residents, their purpose, or the development of a single Union” of the Florida real property is treated the same as any vacation States. See Baldwin v. Fish & Game Comm'n of Montana, or seasonal homes of Florida residents, who are taxed 436 U.S. 371, 384, 98 S.Ct. 1852, 56 L.Ed.2d 354 (1978). upon the full value of those properties. 7 This result is “Only with respect to those ‘privileges and immunities' consistent with the State's legitimate interest in assisting bearing upon the vitality of the Nation as a single entity taxpayers/owners with the costs of their primary shelter must the State treat all citizens, resident and nonresident, and thereby fostering the stability of the basic homestead. equally.” Id. at 383, 98 S.Ct. 1852. The right “to take, Irrespective of the state of residency of their owners, hold and dispose of property, either real or personal; and secondary residences do not trigger the same public policy an exemption from higher taxes or impositions than are concerns and are not entitled to the same protection as paid by the other citizens of the state” is protected by the permanent Florida residences. As a practical matter, those Clause. Supreme Court of New Hampshire v. Piper, 470 persons who are eligible to receive the homestead tax U.S. 274, 280–81 & n. 10, 105 S.Ct. 1272, 84 L.Ed.2d 205 exemption typically will be Florida residents, for they are (1985); Baldwin, 436 U.S. at 384, 98 S.Ct. 1852; Corfield, the taxpayers who have permanent residences in this state. 6 F. Cas. at 551–52. However, this result does not necessarily run afoul of the Clause, for the Clause “is not an absolute.” Toomer v. [18] However, at the heart of the Reinishes' challenge Witsell, 334 U.S. 385, 396, 68 S.Ct. 1156, 92 L.Ed. 1460 is their contention that the Florida exemption imposes (1948). The High Court has acknowledged that the United greater financial burdens on non-residents than on States Constitution does not preclude the States from residents who own Florida real property. Although the adopting “justified and reasonable distinctions *209 item that might or might not qualify for the homestead between residents and nonresidents in the provision of tax exemption, depending on its use, is real property, tax benefits, whether in the form of tax deductions or the crux of the Reinishes' complaint is that their current tax credits.” Lunding, 522 U.S. at 310, 118 S.Ct. 766. ineligibility for the exemption results from a denial of “[I]nequalities that result not from hostile discrimination, certain guarantees and protections in the Clause. Viewed but occasionally and incidentally in the application of from this perspective, their constitutional challenge really

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 12 Reinish v. Clark, 765 So.2d 197 (2000) 25 Fla. L. Weekly D1726 is based more on the denial of equal taxation than on their permanent residence. The Florida homestead tax an alleged infringement upon their right to acquire, hold, exemption was not designed to protect all types of real or dispose of property, for the homestead tax exemption property, and it does not preclude non-residents from scheme does not preclude non-residents from purchasing, purchasing, enjoying, or disposing of Florida property. enjoying, or disposing of Florida residential property. Furthermore, the exemption does not infringe upon the Clause's guarantee “that individuals may migrate between To qualify for relief on this claim pursuant to the proper States to live and work.” Lunding, 522 U.S. at 313, 118 analysis set forth in the Corfield and Austin line of S.Ct. 766; Saenz v. Roe, 526 U.S. 489, 119 S.Ct. 1518, decisions, the Reinishes must show that non-residents' 1524–27, 143 L.Ed.2d 689 (1999) (constitutional right to interest in an exemption from higher taxes on their travel is implicated by Privileges and Immunities Clause secondary residence is, in the words of Circuit Justice and protects right of citizen of one state to enter and leave Washington, one of those “privileges and immunities another state, right to be treated as “a welcome visitor which are, in their nature, fundamental.” See Corfield, 6 rather than an unfriendly alien” when temporarily visiting F. Cas. at 551. another state, and right of new permanent residents to be treated like other citizens of state). In the context of the denial of a homestead tax exemption for a secondary or vacation residence, we find no The exemption is reasonable in effect. It is closely such “fundamental” or essential right in the United and substantially related to the State's valid objective States Constitution. See Baldwin, 436 U.S. at 388–90, to promote and protect taxpayers' financial ability to 98 S.Ct. 1852 (because nonresidents' access on equal purchase and maintain the primary shelter. This purpose terms with Montana residents' access to recreational big- constitutes a substantial justification totally unrelated to game hunting is not a “fundamental” right protected state residency. A secondary or vacation home does not under Clause, elk-hunting licensing scheme that imposed implicate the same acute public policy concerns relating substantially higher license fees upon nonresidents was to the establishment and protection of a stable, financially not a violation of Clause); Rubin, 416 A.2d at 387 secure primary residence. See Rubin, 416 A.2d at 387; (New Jersey Act that limited tax rebate to dwelling Baker, 607 P.2d at 244 (noting that increased property houses and land owned and used by domiciliaries as taxes on vacation homes do not pose as great a threat to their principal residences did not violate Privileges and householder's standard of living as taxes or rent paid on Immunities Clause, for Act's applicability solely to a primary residence). The Florida exemption provides no principal residences was closely related to beneficent greater, or lesser, benefit to Florida owners of secondary purpose of alleviating heavy, escalating realty tax *210 homes than it does to the Reinishes and any other non- burden and was not directed against non-residents); Baker residents. See Blake v. McClung, 172 U.S. 239, 252, 19 v. Matheson, 607 P.2d 233, 247 (Utah 1979) (one-year S.Ct. 165, 43 L.Ed. 432 (1898); The Slaughter–House residency requirement in Utah statute authorizing owner Cases, 16 Wall. 36, 77, 21 L.Ed. 394 (1872); Paul, 75 or renter of “primary residence” to file claim for refunds U.S. at 168 & 180. As those non-residents who wish to of State general fund free revenue did not render statute buy, keep, or dispose of Florida secondary residences impermissibly discriminatory against non-residents so are treated on terms of substantial equality with Florida as to violate Privileges and Immunities Clause); Glen residents under the challenged Florida provisions, we find A. Stankee, “Residents' Property Tax Exemptions: A no violation of a privilege or interest that is sufficiently Modern Analysis Under the Privileges and Immunities “fundamental” to the advancement of interstate harmony, Clause,” 59 Notre Dame L.Rev. 878 (1984). and therefore protected, under the Clause. See United Building, 465 U.S. at 218–20, 104 S.Ct. 1020; Baldwin, 436 The difference in taxation treatment between the real U.S. at 383–84 & n. 20, 98 S.Ct. 1852; Toomer, 334 U.S. property of non-residents and the property of some at 396, 68 S.Ct. 1156. Florida residents (those who meet the “permanent residence” requirement) is only incidentally related to As the Reinishes have not demonstrated the denial of a state residency, and it is explained by the practical effect right protected by the Privileges and Immunities Clause, of a provision that was intended to provide financial this count was properly dismissed with prejudice. assistance to owners who make the Florida property

Interpretation of the Commerce Clause,” 22 Harv. J.L. & Pub. Pol'y 31, 40–41 & nn. 34–37 (1998). COUNT THREE

[19] The third and final count of the second amended [20] [21] [22] The first step in assessing whether a complaint alleged that the constitutional and statutory state or local regulation violates the Clause involves the homestead tax exemption provisions constitute a per se determination of whether the regulation treats out-of- violation of the “dormant” Commerce Clause in Article state commerce differently. See Fulton Corp. v. Faulkner, 516 U.S. 325, 331, 116 S.Ct. 848, 133 L.Ed.2d 796 I, Section 8, United States Constitution, 8 in that they (1996); Toomer, 334 U.S. at 394, 68 S.Ct. 1156; Welton attempt *211 to create customs duties, barriers, or taxes v. Missouri, 91 U.S. 275, 280, 23 L.Ed. 347 (1876) that discriminate against and unduly burden interstate (noting one of fundamental purposes of Clause was commerce and impermissibly impose a tariff on citizens “to insure ... against discriminating State legislation”). whose primary residence is located outside Florida. As “Discrimination” refers to differential treatment, see “[t]he states are not separable economic units,” H.P. Oregon Waste Systs., 511 U.S. at 99, 114 S.Ct. 1345, Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 537–38, 69 such as where a regulation places a greater economic S.Ct. 657, 93 L.Ed. 865 (1949), underlying the Clause is burden on those outside the state, with an attendant “the principle that one state in its dealings with another economic advantage to those within the state. See South may not place itself in a position of economic isolation.” Carolina State Highway Department v. Barnwell Brothers, Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 527, 55 S.Ct. Inc., 303 U.S. 177, 184–86 & n. 2, 58 S.Ct. 510, 82 497, 79 L.Ed. 1032 (1935). L.Ed. 734 (1938). If, for example, a state tax is found to discriminate against interstate commerce, usually it 8 The Commerce Clause states, in pertinent part: “The will be stricken as a violation of the Clause, without Congress shall have power to ... regulate Commerce additional inquiry. See Chemical Waste Management, Inc. with foreign Nations, and among the several States.” v. Hunt, 504 U.S. 334, 112 S.Ct. 2009, 119 L.Ed.2d 121 Art. I, § 8, cl. 3, U.S. Const. In one respect, the Clause (1992). This is because if the legislation discriminates constitutes an affirmative grant of power to Congress. The Clause also has a negative or dormant aspect, against interstate commerce, it very likely is undergirded which severely limits the extent to which the States by an impermissible motive. Where a state or local law is or local governments can discriminate against, unduly discriminatory, then the presumption that the intent of the burden, tax, or otherwise interfere with interstate law is permissible is reversed, and the State or the local commerce or engage in economic isolationism, even entity must demonstrate that it has a strong, legitimate in the absence of an exercise of Congress' affirmative local concern that warrants the discrimination. See Maine power. See General Motors Corp. v. Tracy, 519 U.S. v. Taylor, 477 U.S. 131, 138, 106 S.Ct. 2440, 91 L.Ed.2d 278, 287, 117 S.Ct. 811, 136 L.Ed.2d 761 (1997); West 110 (1986); Hunt v. Washington State Apple Advertising Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 192, 114 Comm'n, 432 U.S. 333, 353, 97 S.Ct. 2434, 53 L.Ed.2d 383 S.Ct. 2205, 129 L.Ed.2d 157 (1994) (negative aspect (1977). of Commerce Clause bans economic protectionism, i.e., “measures designed to benefit in-state economic [23] [24] Even where a regulation is not per se interests by burdening out-of-state competitors”); discriminatory, the court must decide whether the Oregon Waste Sys., Inc. v. Dep't of Env. Quality, 511 U.S. 93, 98, 114 S.Ct. 1345, 128 L.Ed.2d 13 regulation substantially burdens interstate commerce (1994); Quill Corp. v. North Dakota, 504 U.S. 298, while the local benefits appear insubstantial. See Edgar 309, 112 S.Ct. 1904, 119 L.Ed.2d 91 (1992); Hughes v. MITE Corp., 457 U.S. 624, 646, 102 S.Ct. 2629, 73 v. Oklahoma, 441 U.S. 322, 336, 99 S.Ct. 1727, 60 L.Ed.2d 269 (1982); Raymond Motor Trans., Inc. v. Rice, L.Ed.2d 250 (1979). 434 U.S. 429, 447, 98 S.Ct. 787, 54 L.Ed.2d 664 (1978). If The “dormant” Commerce Clause case law of the the burden on interstate commerce clearly outweighs the United States Supreme Court essentially has allowed regulation's *212 potential benefits, then the regulation a presumption that state legislation is intended to will be found deficient. See C & A Carbone, Inc. v. regulate local activities under the police power. However, Clarkstown, 511 U.S. 383, 390, 114 S.Ct. 1677, 128 exceptions are recognized in two main instances. See L.Ed.2d 399 (1994). generally Thomas W. Merrill, “Toward a Principled

[25] [26] [27] [28] The dormant aspect of thebrandy distilled from root of indigenous shrub violated Clause provides protection for persons, not just for Clause in that it had discriminatory purpose of aiding goods, that move across state borders; it is immaterial Hawaii liquor industry and clearly discriminatory effect whether the transportation is of a commercial or profit- of applying only to locally produced alcoholic beverages); making nature. See Camps Newfound/Owatonna, Inc. Clover Leaf Creamery, 449 U.S. at 471 & n. 15, 101 v. Town of Harrison, Maine, 520 U.S. 564, 573, 117 S.Ct. 715; Hunt, 432 U.S. at 352–53, 97 S.Ct. 2434 S.Ct. 1590, 137 L.Ed.2d 852 (1997); Bacchus Imports, (North Carolina statute that effectively prohibited display Ltd. v. Dias, 468 U.S. 263, 268 n. 8, 104 S.Ct. 3049, of Washington State apple grades on closed containers 82 L.Ed.2d 200 (1984) ( “[D]iscrimination between in- shipped into North Carolina burdened interstate sales state and out-of-state goods is as offensive to the of Washington State apples, which were subject to Commerce Clause as discrimination between in-state and expensive inspection and grading system in Washington, out-of-state taxpayers.”); Edwards v. California, 314 U.S. and had discriminatory effect upon them, shielding 160, 172 & n. 1, 62 S.Ct. 164, 86 L.Ed. 119 (1941) North Carolina apple growers/dealers and leaving them (invalidating, as unconstitutional barrier to interstate unaffected, in violation of Commerce Clause). commerce, California statute that prohibited knowingly “bringing into the State any indigent person who is not If the homestead tax exemption fails the first step of a resident of the State”). The dormant aspect of the the two-part test, then it violates the Clause and our Clause covers and protects “markets and participants inquiry ends. However, even if the challenged provisions in markets,” Tracy, 519 U.S. at 300, 117 S.Ct. 811, are not per se discriminatory, the second step of the including those engaged in competition for real natural analysis requires us to determine whether the exemption resources such as real estate. See New England Power scheme places a burden on interstate commerce that Co. v. New Hampshire, 455 U.S. 331, 338, 102 S.Ct. clearly outweighs its possible benefits. See C & A Carbone, 1096, 71 L.Ed.2d 188 (1982) (Clause “precludes a state 511 U.S. at 390, 114 S.Ct. 1677. “[W]here other legislative from mandating that its residents be given a preferred objectives are credibly advanced and there is *213 right of access, over out-of-state consumers, to natural no patent discrimination against interstate trade, the resources located within its borders or to the products Court has adopted a much more flexible approach.” derived therefrom.”); McLain v. Real Estate Bd. of New Philadelphia, 437 U.S. at 624, 98 S.Ct. 2531. This Orleans, 444 U.S. 232, 246, 100 S.Ct. 502, 62 L.Ed.2d 441 approach was described in Pike v. Bruce Church, Inc., 397 (1980); Philadelphia v. New Jersey, 437 U.S. 617, 627, 98 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970): S.Ct. 2531, 57 L.Ed.2d 475 (1978). “A tax on real estate, like any other tax, may impermissibly burden interstate commerce,” and the fact “[t]hat the tax discrimination Where the statute regulates comes in the form of a deprivation of a generally available evenhandedly to effectuate a tax benefit, rather than a specific penalty on the activity legitimate local public interest, and itself, is of no moment.” Camps Newfound/Owatonna, its effects on interstate commerce 520 U.S. at 574 & 578–79, 117 S.Ct. 1590; New Energy are only incidental, it will be upheld Co. of Indiana v. Limbach, 486 U.S. 269, 274, 108 S.Ct. unless the burden imposed on 1803, 100 L.Ed.2d 302 (1988) (invalidating Ohio statute such commerce is clearly excessive that provided tax credit for sales of ethanol produced in- in relation to the putative local state, but not ethanol produced in certain other states). benefits.... If a legitimate local “[W]here simple economic protectionism is effected by purpose is found, then the question state legislation, a virtually per se rule of invalidity has becomes one of degree. And the been erected.” Philadelphia, 437 U.S. at 624, 98 S.Ct. extent of the burden that will be 2531; Chemical Waste Management, 504 U.S. at 342, 112 tolerated will of course depend on S.Ct. 2009. “A finding that state legislation constitutes the nature of the local interest ‘economic protectionism’ may be made on the basis of involved, and on whether it could either discriminatory purpose ... or discriminatory effect.” be promoted as well with a lesser Bacchus Imports, 468 U.S. at 270–71, 104 S.Ct. 3049 impact on interstate activities. (Hawaii liquor tax exemption for pineapple wine and for

of-staters [footnote omitted], the pernicious effect on The Reinishes assert that while they (and the class interstate commerce” was found to be “the same as in ... they seek to represent) are engaged in direct economic cases involving taxes targeting out-of-staters alone.” Id. at competition with Florida residents for the purchase of real 579–80, 117 S.Ct. 1590. Likening the Maine statute to an estate, the challenged exemption affords those persons export tariff in terms of its function, the Court observed: who establish a Florida permanent residence a clear “By encouraging economic isolationism, prohibitions on and continuing economic advantage over non-residents. out-of-state access to in-state resources serve the very First, eligible property is subject to an exclusion of the evil that the dormant Commerce Clause was designed to first $25,000 from ad valorem taxes. Second, any future prevent.” Id. at 578 & 580–81, 117 S.Ct. 1590. Applying increases in the assessed value of eligible property are strict scrutiny, rather than a more *214 deferential limited to three per cent annually. Art. VII, § 4, Fla. standard, because the statute was found to be facially Const.; § 193.155, Fla. Stat. (1997). discriminatory, the Court held the statute to be invalid and reversed the judgment of the Maine Supreme Judicial To support their argument that the Florida homestead Court. See id. at 581–82, n. 16, & 595, 117 S.Ct. 1590. tax exemption directly discriminates against non-resident consumers of Florida real estate, the Reinishes expressly The instant trial court found that Camps Newfound/ rely on Camps Newfound/Owatonna, 520 U.S. at 564, Owatonna is not applicable to the type of tax exemption 117 S.Ct. 1590. The Maine statute at issue in that scheme involved in the case at bar. Having carefully case provided a general exemption from real estate and reviewed the facts in that case, we concur with the personal property taxes for “benevolent and charitable lower tribunal's determination that the facts in Camps institutions incorporated” by the State. With regard to Newfound/Owatonna are clearly distinguishable from the institutions that were “in fact conducted or operated circumstances presented in the Florida homestead tax principally for the benefit of persons who are not residents exemption provisions. of Maine,” a charity could qualify only for a more limited tax benefit, and then only if the weekly charge for services In analyzing the challenge to the state statute on provided did not exceed $30 per person. See id. at 568 Commerce Clause grounds in Philadelphia, the United & n. 2, 117 S.Ct. 1590. Because most of their campers States Supreme Court recognized that the essential came from out of state, the petitioners (non-profit summer inquiry must be whether the challenged provision “is camps) could not qualify for a total exemption; with a basically a protectionist measure, or whether it can weekly tuition of about $400, they were ineligible for any fairly be viewed as a law directed to legitimate local charitable tax exemption at all. See id. at 568–69, 117 concerns, with effects upon interstate commerce that S.Ct. 1590. For purposes of analysis under the Clause, are only incidental.” 437 U.S. at 624, 98 S.Ct. 2531. the United States Supreme Court noted that the camps' A determination that a state regulation constitutes “product” comprised the natural beauty of Maine as well impermissible “economic protectionism” can be made as the special services provided by the camps. See id. at based on either 1) a “discriminatory purpose,” as was true 576–77, 117 S.Ct. 1590. From the face of the statute, the of the Massachusetts pricing order, which had an “avowed High Court concluded that the law discriminated against purpose ... to enable Massachusetts dairy farmers to interstate commerce in that it expressly distinguished compete with lower cost dairy farmers in other States,” entities that served mainly interstate clients from those in West Lynn Creamery, 512 U.S. at 194, 114 S.Ct. 2205; that catered primarily to an intrastate market, and then it or 2) a “discriminatory effect,” as was found in the North singled out camps that served principally Maine residents Carolina statutory restrictions upon grading apples in for beneficial tax treatment while it penalized other camps, incoming closed containers in Hunt, 432 U.S. at 350–52, which conducted mostly interstate business. See id. at 97 S.Ct. 2434. See Bacchus Imports, 468 U.S. at 270, 104 575–76, 117 S.Ct. 1590. The statute included “a strong S.Ct. 3049. incentive for affected entities not to do business with nonresidents if they [were] able to do so to avoid the [29] Addressing the first stage of the two-part analysis discriminatory tax.” Id. at 578, 117 S.Ct. 1590. As the in Commerce Clause challenges, we conclude that the burden of the facially discriminatory tax scheme “[fell] homestead tax exemption is not per se discriminatory by design in a predictably disproportionate way on out- against interstate commerce, for the provisions do not

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 16 Reinish v. Clark, 765 So.2d 197 (2000) 25 Fla. L. Weekly D1726 treat local and interstate commerce differently. We can appellate panel noted that the exemption did not discern neither a discriminatory purpose underlying the disproportionately burden non-residents, nor did it exemption nor an improper discriminatory effect on non- distinguish between residents of the Village and residents residents. In Camps Newfound/Owatonna, the exemption of another State. Rather, it differentiated between Village was facially discriminatory because it disparately treated residents who sold their home and chose to repurchase a identically positioned Maine non-profit camps depending home in the Village, on the one hand, and Village resident on whether they favored in-state, rather than out-of- sellers who elected to purchase a home anywhere else, on state, campers. See 520 U.S. at 582 n. 16, 117 S.Ct. the other hand. The court noted that the “product”–––the 1590. In contrast, the Florida homestead tax exemption real estate–––“cannot travel in interstate commerce.” Id., neither distinguishes between Florida residents and 230 Ill.Dec. 824, 694 N.E.2d at 1106. The appellants were non-residents nor disparately treats identically situated not engaged in interstate commerce, and no interstate persons. The focus of the exemption is on the use of commerce activity was alleged to have increased the the property itself, and not on the user. Entitlement appellants' tax burden. See id. , 230 Ill.Dec. 824, 694 to the exemption hinges upon whether the property is N.E.2d at 1107. The panel stated: used as the “permanent residence.” We cannot find any reasonable basis to support the Reinishes' claim that the exemption discriminates against interstate commerce. The The ordinance, with its exemption, historical justification of the homestead tax exemption does not impose a tax on people is the protection of the home, a legitimate governmental who leave the Village. It rewards purpose. the people who stay. In that way the Village promotes stability and Although a foreign decision lacks precedential value, continuity. That is a legitimate local we find both instructive and useful the well-reasoned purpose. analysis set forth by the Appellate Court of Illinois in Stahl v. Village of Hoffman Estates, 296 Ill.App.3d 550, 230 Ill.Dec. 824, 694 N.E.2d 1102 (1998). Under a 1987 Id. Given these considerations, the court found no reason ordinance adopted by the Village of Hoffman Estates, why the decision to leave the Village and, thus, to forego Illinois, the grantor of a deed conveying Village real the tax exemption could be said to violate the Commerce property would incur transfer tax liability. In 1990, the Clause. The order of dismissal was affirmed. See id., 230 Village raised the tax to $3.00 for every $1,000 valuation. Ill.Dec. 824, 694 N.E.2d at 1107–8. However, the ordinance provided an exemption from payment of the tax for a grantor who had lived on the Having found no facial discrimination against interstate property for a year if he or she bought another residence commerce, we look to the second stage of the analysis in the Village within a certain period of time. Mr. Stahl under the Clause to determine whether the Florida and the other plaintiffs sold their homes in the Village homestead tax exemption imposes a burden on interstate and elected to move to places other than the Village, commerce that clearly outweighs its potential benefits. thereby incurring transfer tax liability. They joined in See C & A Carbone, 511 U.S. at 390, 114 S.Ct. 1677; a constitutional attack upon the transfer tax and its Pike, 397 U.S. at 142, 90 S.Ct. 844; Mary Lafrance, exemption alleging, among other grounds, that it violated “Constitutional Implications of Acquisition–Value Real the Commerce Clause. Finding no violations of either the Property Taxation: Assessing the Burdens on Travel and United *215 States or Illinois Constitutions, the trial Commerce,” 1994 Utah L.Rev. 1027 (1994). The High court granted the Village's motion to dismiss the suit. See Court in Camps Newfound/Owatonna stated that “[a] tax id., 230 Ill.Dec. 824, 694 N.E.2d at 1103–05. on real estate, like any other tax, may impermissibly burden interstate commerce.” 520 U.S. at 574, 117 S.Ct. Stahl and the other appellants conceded that the 1590. As enunciated in Pike and Philadelphia, this step exemption did not substantially burden interstate involves “a much more flexible approach” than the commerce. Instead, they focused on the first step of the preliminary step. 437 U.S. at 624, 98 S.Ct. 2531. We Commerce Clause analysis, alleging that the exemption conclude that the Florida exemption is an even-handed facially discriminated against interstate commerce. The regulation that promotes the legitimate, strong public

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 17 Reinish v. Clark, 765 So.2d 197 (2000) 25 Fla. L. Weekly D1726 interest in promoting the stability and continuity of the primary permanent home. The Reinishes have not shown either that the effects of the exemption upon interstate ALLEN, J., concurs; BENTON, J., concurs with opinion. commerce are anything more than incidental, or that the burden imposed on such commerce is clearly excessive BENTON, J., concurring. when compared to the asserted local benefits. Under these I concur in the court's judgment and join Judge Browning's circumstances, the Court's criteria in Pike for upholding scholarly opinion except to the extent it endorses the the regulation are met. Accordingly, we find that the count result reached in Stahl v. Village of Hoffman Estates, 296 based on the “dormant” Commerce Clause was properly Ill.App.3d 550, 230 Ill.Dec. 824, 694 N.E.2d 1102 (1998). dismissed with prejudice.

All Citations The final order dismissing the Reinishes' second amended complaint with prejudice is AFFIRMED. 765 So.2d 197, 25 Fla. L. Weekly D1726

KeyCite Yellow Flag - Negative Treatment West Headnotes (16) Called into Doubt by Baldwin v. City of Estherville, Iowa, June 29, 2018 646 So.2d 717 [1] Constitutional Law Supreme Court of Florida. Motor vehicles DEPARTMENT OF REVENUE, et State residents who faced penalties for failure al., Appellants/Cross–Appellees, to pay allegedly unconstitutional impact v. fee on vehicles purchased or titled out-of- David KUHNLEIN, et al., state but subsequently registered in-state by state residents had standing to challenge Appellees/Cross–Appellants. constitutionality of fee even though they had DEPARTMENT OF HIGHWAY either not paid fee or had not requested SAFETY AND MOTOR VEHICLES, refund. West's F.S.A. § 319.231. et al., Appellants/Cross–Appellees, v. 6 Cases that cite this headnote Richard ADAMS, et al., Appellees/Cross–Appellants. [2] Action Persons entitled to sue Nos. 82994, 82995. | Courts Sept. 29, 1994. Florida | Unlike federal courts, Florida circuit courts Order Granting One Motion for Clarification are tribunals of plenary jurisdiction, and but Denying other Motion Nov. 30, 1994. have authority over any matter not expressly denied them by Constitution or applicable Synopsis statutes; therefore, although doctrine of State residents brought action challenging standing exists in Florida, it is not in rigid constitutionality of impact fee imposed on cars purchased sense employed in federal system. West's or titled in other states but subsequently registered in- F.S.A. Const. Art. 5, § 5. state by state residents. The Orange County Circuit Court, Lawrence R. Kirkwood, J., found that fee violated 12 Cases that cite this headnote commerce clause and ordered refunds, and appeal was taken. The District Court of Appeal certified question to [3] Action be one of great public importance requiring immediate Persons entitled to sue resolution. The Supreme Court, Kogan, J., held that: (1) Constitutional Law impact fee discriminated against out-of-state economic Advisory Opinions interests; (2) state failed to show that fee advanced legitimate local purpose that could not be adequately Except as otherwise required by Constitution, served by reasonable nondiscriminatory means; and (3) Florida recognizes general standing full refund was appropriate remedy. requirement in sense that every case must involve real controversy as to issue or issues Ordered accordingly. presented, i.e., parties must not be requesting advisory opinion except in those rare instances Shaw, J., concurred in result only. in which such opinions are authorized by Constitution.

17 Cases that cite this headnote

[4] States [8] Parties Tax matters Constitutional challenges and actions State's sovereign immunity, alleged common- against government in general law rule that no one is entitled to refund Any constitutional claim affecting class of of illegal tax, and requirements of state tax persons can be proper subject of class action refund statutes were not proper reasons to provided that other procedural requirements bar constitutional claim regarding impact are met. West's F.S.A. § 319.231. fee imposed on vehicles acquired out-of-state but subsequently registered in-state by state 2 Cases that cite this headnote residents; sovereign immunity did not exempt state from challenge based on violation of [9] Automobiles Federal or State Constitution, and neither Constitutionality and validity of acts and common-law nor state statute can supersede ordinances provision of Federal or State Constitution. Commerce West's F.S.A. § 319.231. Motor vehicles and carriers 13 Cases that cite this headnote Impact fee assessed by state on vehicles purchased or titled in other states but subsequently registered in-state by state [5] States residents discriminated against out-of-state Particular Actions economic interests in contravention of Sovereign immunity did not exempt state from commerce clause and could not pass challenge based on violation of Federal or constitutional muster unless fee was shown State Constitution. to advance legitimate local purpose that could not be adequately served by reasonable 5 Cases that cite this headnote nondiscriminatory means; although credit was given under statute to extent that [6] Constitutional Law registrant paid state sales and use taxes, Constitution as supreme, paramount, or fee was not imposed on cars from out-of- highest law state that were sold by in-state dealers, and Neither common-law nor state statute can circumstances existed under which out-of- supersede provision of Federal or State state sale to Florida resident would result in Constitution. tax that was approximately two times what would be paid for same transaction conducted Cases that cite this headnote entirely within state. West's F.S.A. § 319.231; U.S.C.A. Const. Art. 1, § 8, cl. 3. [7] Parties 2 Cases that cite this headnote Taxpayers and license holders or applicants [10] Commerce Refund claim based on alleged Discrimination unconstitutionality of impact fee assessed on state residents' used vehicles could be cast as In deciding whether commerce clause has class action; any constitutional claim affecting been violated, reviewing court must first class of persons can be proper subject of determine whether state action regulates even- class action provided that other procedural handedly or imposes actual discrimination requirements are met. West's F.S.A. § 319.231. against interstate commerce; discrimination exists when state law taxes transaction more 5 Cases that cite this headnote heavily when it crosses state lines than when it

occurs entirely within state. U.S.C.A. Const. on cars purchased or titled in other states Art. 1, § 8, cl. 3. but then registered in-state by state residents could not be remedied by severing impact- Cases that cite this headnote fee exemption for state dealers; even with severance, differential treatment still would [11] Commerce remain with respect to used vehicles sold by Local matters affecting commerce nondealers. West's F.S.A. § 319.231; U.S.C.A. Const. Art. 1, § 8, cl. 3. If state action imposes actual discrimination against interstate commerce, action is Cases that cite this headnote virtually per se invalid, and state can defeat presumption of invalidity only by showing that statute in question advances legitimate [14] Automobiles local purpose that cannot be adequately Remedies for wrongful collection served by reasonable nondiscriminatory Commerce means. U.S.C.A. Const. Art. 1, § 8, cl. 3. Motor vehicles and carriers In context of successful commerce-clause Cases that cite this headnote challenge to impact fee imposed on vehicles purchased or titled in other states but then [12] Automobiles registered in-state by state residents, trial Constitutionality and validity of acts and court was justified in rejecting state's proposal ordinances that it be allowed to develop some form of Commerce retroactive remedy, presumably a retroactive Motor vehicles and carriers tax against state vehicle titles not previously subject to impact fee; record indicated that Impact fee imposed on vehicles purchased responsible state agency would be unable to or title in other states but subsequently collect tax from very substantial percentage registered in-state by state residents, which fee of title holders, whose addresses could not be discriminated against out-of-state economic kept current, and agency further averred that interests in contravention of commerce clause, it lacked resources necessary to track down was not shown to advance legitimate local such title holders. West's F.S.A. § 319.231; purpose that could not be adequately served U.S.C.A. Const. Art. 1, § 8, cl. 3. by reasonable nondiscriminatory means; assuming that need to obtain adequate road- 1 Cases that cite this headnote maintenance and construction revenues from those who used roads was legitimate local purpose, there existed less discriminatory [15] Automobiles methods for state to obtain such revenues, Refunding or recovering e.g., increase in fuel tax, and there was Only clear and certain remedy for no rational reason why legislature chose unconstitutional impact fee imposed on regressive tax such as one in question. West's vehicles purchased or titled in other states but F.S.A. § 319.231; U.S.C.A. Const. Art. 1, § 8, then registered in-state by state residents was cl. 3. full refund to all who had paid tax. West's F.S.A. § 319.231; U.S.C.A. Const. Art. 1, § 8, 1 Cases that cite this headnote cl. 3.

6 Cases that cite this headnote [13] Statutes Taxation Discrimination against out-of-state economic [16] Constitutional Law interests resulting from impact fee imposed Taxation and public finance

If there is any reasonable way that credit was given to the extent that the registrant paid legislative prerogative may be honored Florida sales and use taxes, though no credit is given for without substantial injustice to taxpayers of any out-of-state taxes paid on the same vehicle. The fee state, then court reviewing tax case involving is not imposed upon tourists or temporary visitors to commerce clause challenge should give Florida, nor upon used cars imported from out-of-state legislature opportunity to fashion retroactive that are sold by Florida dealers. 1 remedy within reasonable period of time; as general rule, reasonable period of time means 1 The statute provides: by end of next regular legislative session plus (1) An impact fee of $295 is imposed on each period of time in which governor must review original certificate of title issued for a motor vehicle bills approved by both houses. U.S.C.A. previously titled outside of this state. The fee, which Const. Art. 1, § 8, cl. 3. shall be deposited into the General Revenue Fund, shall not be refundable unless it is paid in error. 4 Cases that cite this headnote (2) The fee imposed by subsection (1) shall not apply to: (a) Service-providing vehicles of those not- for-profit organizations which qualify for an Attorneys and Law Firms exemption with respect to the purchase of a motor vehicle or mobile home under the provisions of s. *719 Robert A. Butterworth, Atty. Gen., and Eric 212.08. J. Taylor and Harry F. Chiles, Asst. Attys. Gen., (b) The title application for any motor vehicle Tallahassee, for appellants, cross-appellees. owned by and operated exclusively for the personal use of: Christopher K. Kay and Michael J. Beaudine, Foley & 1. Any member of the United States Armed Forces, Lardner, Orlando, and Kimball R. Anderson, W. Gordon or his spouse or dependent child, who is not a Dobie and Bruce R. Braun, Winston & Strawn, Chicago, resident of this state and who is stationed in this IL on behalf of David Kuhnlein, et al. state while in compliance with military orders. 2. Any former member of the United States James K. Green, James K. Green, P.A., West Palm Beach, Armed Forces, or his spouse or dependent child, and Robert W. Smith, Orlando, Cooperating Attys., for who purchased such motor vehicle while stationed American Civ. Liberties Union Foundation of Florida, outside of Florida or who purchased the vehicle Inc., on behalf of Richard Adams and Balance Chow. prior to departing the state, who has separated from the Armed Forces and was not dishonorably James M. Ervin, Jr. and John M. Gillies, Holland & discharged or discharged for bad conduct, who was Knight, Tallahassee, and Jeffrey S. Sutton, Jones, Day, a resident of this state at the time of enlistment Reavis & Pogue, Columbus, OH, amicus curiae, for R.R. and at the time of discharge, and who applies for registration of such motor vehicle within 6 months Donnelly & Sons Co. after discharge. Opinion 3. Any member of the United States Armed Forces, or his spouse or dependent child, who was a KOGAN, Justice. resident of this state at the time of enlistment, who purchased such motor vehicle while stationed We have for review a question certified by the Fifth outside of Florida or who purchased the vehicle District Court of Appeal to be of great public importance, prior to departing the state, and who is now requiring immediate resolution by this Court. We have reassigned by military order to this state. jurisdiction. Art. V, § 3(b)(5), Fla. Const. 4. Any spouse or dependent child of a member of the United States Armed Forces who loses his life while on active duty or who is listed by the Armed In 1990, the Florida Legislature passed an act imposing a Forces as “missing-in-action.” Such spouse or child $295 impact fee on cars purchased or titled in other states must be a resident of this state and the serviceman that then are registered in Florida by persons having or must have been a resident of this state at the time establishing permanent residency here. As later amended, of enlistment. Registration of such motor vehicle

must occur within 1 year of the notification of the serviceman's death or of his status as “missing-in- The trial court consolidated the various cases. The action.” trial court later entered final summary judgment finding (c) Title applications where a reassignment is being section 319.231 unconstitutional under the Commerce made by a licensed Florida motor vehicle dealer. Clause of the United States Constitution and ordering an (d) The titling of any motor vehicle owned or immediate refund. It also ruled that a taxpayer could bring exclusively operated by the state or by any county, a Section 1983 action in state court in a tax matter. The municipality, or other governmental entity. trial court denied the Civil Rights Plaintiffs' claim that the (e) The titling of a truck defined in s. 320.08(3)(d). (f) The titling of any motor vehicle 25 model years statute violated the right to travel. old or older. (g) The titling of a motor vehicle owned by [1] Initially, the State argues that various plaintiffs below any organization or person exempt under the lacked standing to pursue this case because they either provisions of s. 320.0655(2), s. 320.084(1), s. have not paid the fee or have not requested a refund of any 320.0841, s. 320.0842(1), s. 320.089(2), s. 320.0893, fee paid. We note that the trial court rejected the State's or s. 320.10. factual contentions with respect to some appellants, and (h) Persons applying for temporary registration the record adequately supports the judge's findings. We plates pursuant to s. 320.1325, unless permanent also do not believe there is any requirement that the registration is applied for. plaintiff must pay the fee or request a refund, at least in the (3) The fee imposed by subsection (1) shall present case. The fact that these plaintiffs face penalties for also be imposed on vehicles processed using the failure to pay an allegedly unconstitutional tax is sufficient “registration-only” procedure, and payment of to create standing under Florida law. such fee shall be identified and retained in the motor vehicle registration records. However, the exemptions listed in subsection (2) shall also apply. [2] Unlike the federal courts, Florida's circuit courts (4) Credit shall be applied towards the fee imposed are tribunals of plenary jurisdiction. Art. V, § 5, Fla. by subsections (1) and (3) for any documented sales Const. They have authority over any matter not expressly or use tax paid to this state at the time of sale, or any denied them by the constitution or applicable statutes. use tax paid to this state, if the title or registration- Accordingly, the doctrine of standing certainly exists in only application is made within 6 months of the Florida, but not in the rigid sense employed in the federal date of purchase of the motor vehicle. system. We thus are not persuaded by the federal standing § 319.231, Fla.Stat. (1991). cases cited by the State. *720 Two separate groups later filed suit. The first group consisted of a certified class of plaintiffs who [3] We do agree that, except as otherwise required by sued for declaratory judgment on grounds that the tax the constitution, Florida recognizes a general standing violated guarantees of the United States Constitution, requirement in the sense that every case must involve a including the Commerce Clause. The Florida Department real controversy as to the issue or issues presented. See of Revenue (“DOR”) and the other State parties contend *721 Interlachen Lakes Estates, Inc. v. Brooks, 341 So.2d that several members of the class were legally required 993 (Fla.1976). Put another way, the parties must not be to pay the impact fee but have submitted no proof that requesting an advisory opinion, id., except in those rare they actually paid it. The State also argues that none instances in which advisory opinions are authorized by the of the class plaintiffs have applied for a refund, which Constitution. E.g., art. IV, § 1(c), Fla. Const. (advisory allegedly would trigger circuit court jurisdiction under opinions to Governor). sections 26.012(2)(e) and 215.26, Florida Statutes (1993). Some of the plaintiffs dispute these claims. In the context of declaratory judgment actions, we have reiterated much the same rule: The other group of plaintiffs filed an action arguing that the impact fee violated their civil rights. They sought relief under 42 U.S.C. § 1983. The State contended that Section Before any proceeding for 1983 was not an appropriate vehicle for challenging a state declaratory relief should be tax matter. entertained it should be clearly

made to appear that there is a In sum, the controversy here is certainly greater than bona fide, actual, present practical the one that existed in Martinez. Accordingly, standing need for the declaration; that the existed for the plaintiffs below to bring this action for declaration should deal with a declaratory judgment. present, ascertained or ascertainable state of facts or present controversy [4] [5] [6] The State next argues that the cause below as to a state of facts; that was barred by the state's sovereign immunity, by an some immunity, power, privilege or alleged common law rule that no one is entitled to the right of the complaining party is refund of an illegal tax, and by the requirements of dependent upon the facts or the law Florida's refund statutes. Even if true, these are not proper applicable to the facts; that there is reasons to bar a claim based on constitutional concerns. some person or persons who have, Sovereign immunity does not exempt the State from or reasonably may have an actual, a challenge based on violation of the federal or state present, adverse and antagonistic constitutions, because any other rule self-evidently would interest in the subject matter, either make constitutional law subservient to the State's will. in fact or law; that the antagonistic Moreover, neither the common law nor a state statute can and adverse interests are all before supersede a provision of the federal or state constitutions. the court by proper process or class representation and that the relief [7] [8] We also are unpersuaded by the State's claim sought is not merely the giving of that a refund claim cannot be cast as a class action. Any legal advice by the courts or the constitutional claim affecting a class of persons can be the answer to questions propounded proper subject of a class action, provided other procedural from curiosity. These elements are requirements are met, as they were here. necessary in order to maintain the status of the proceeding as being [9] [10] On the merits, we first address the Commerce judicial in nature and therefore Clause issue. The United States Constitution provides that within the constitutional powers of “Congress shall have Power ... To regulate Commerce the courts. with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const. art. I, § 8. Justice Clarence Thomas recently explained how the Commerce May v. Holley, 59 So.2d 636, 639 (Fla.1952), reaffirmed Clause acts as a restriction on certain kinds of state by, Martinez v. Scanlan, 582 So.2d 1167, 1170 (Fla.1991). actions:

The State here argues that the instant case does not meet the May requirements. We disagree. This Court accepted Though phrased as a grant of jurisdiction in Martinez (relying on May ) to resolve a regulatory power to Congress, the dispute between various groups and the Governor over Clause has long been understood to the validity of workers' compensation laws, even though have a “negative” aspect that denies the case arguably came close to being a request for an the States the power unjustifiably advisory opinion. Id. at 1170–71. It is true that no party to discriminate against or burden disputed standing there, but this Court still refused to the interstate flow of articles of decline jurisdiction sua sponte, because of the importance commerce. of the issue. Id. at 1171.

We find that the present case does involve an actual *722 Oregon Waste Systems, Inc. v. Department of controversy that is directly affecting, or can directly affect, Environmental Quality, 511 U.S. 93, ––––, 114 S.Ct. the lives of many Florida residents. This is so because the 1345, 1349, 128 L.Ed.2d 13 (1994). In deciding whether law in question here requires certain residents either to pay the Clause has been violated, the reviewing court an allegedly illegal tax or risk being penalized by the State. first must determine whether the state action regulates

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 Department of Revenue v. Kuhnlein, 646 So.2d 717 (1994) 63 USLW 2271, 19 Fla. L. Weekly S467 even-handedly or imposes actual discrimination against tax in turn is supplemented by a use tax assessed against interstate commerce. Id. “Discrimination” in this context certain out-of-state purchases of goods that are brought means into Florida for use here. Vehicles are included. 2 § 212.06, Fla.Stat. (1991). The overall purpose of the use tax is to recoup sales tax revenues the state otherwise would differential treatment of in-state and lose when goods purchased out-of-state are brought into out-of-state economic interests that Florida for use here. However, use taxes involve two benefits the former and burdens the special problems of a constitutional dimension, which latter. states like Florida have attempted to resolve through use- tax exemptions.

Id. at ––––, 114 S.Ct. at 1350. Discrimination exists when 2 Nothing in the statute or administrative rules treat a state law taxes a transaction more heavily when it crosses sales of used cars any differently than new cars. state lines than when it occurs entirely within the state. Id. See Fla.Admin.Code R. 12A–1.007(2)(a) (use tax is inapplicable only if “the person owning the ... motor [11] If actual discrimination is present, the state action vehicle purchased the ... motor vehicle in another is “virtually per se invalid.” Id. The State in question can state, territory of the United States, or the District of defeat the presumption of invalidity only by showing that Columbia six (6) months or more prior to the time the statute advances a legitimate local purpose that cannot it is brought into this state.”). That being the case, the use tax itself applies to used vehicles purchased be adequately served by reasonable nondiscriminatory out of state for use in Florida, provided the other means. Id. at ––––, 114 S.Ct. at 1351. relevant conditions are met, no matter how long the used vehicle may have been used in another state by On the question of discrimination, the class plaintiffs rely its prior owners. in part on the effect the impact fee will have on interstate The first of these problems is in determining when an out- commerce in used automobiles. They have argued that of-state transaction actually was not motivated by a desire the impact fee will be applied to used vehicles purchased to bring an item of personal property into Florida for use and titled out-of-state and then brought into Florida, here. The legislature has resolved this issue by a simple but will not apply to used cars already titled in Florida bright-line test: The use tax is presumptively inapplicable and sold here. Accordingly, class plaintiffs argue that in- to tangible personal property purchased and used for at state dealers in used cars automatically will have a $295 least six months in another jurisdiction of the United advantage over similar out-of-state dealers. States. § 212.06(8)(a), Fla.Stat. (1991). Administrative rules promulgated by DOR further refine the test: We believe, as the State urges, that we cannot examine this argument apart from the overall vehicle taxing scheme adopted by Florida, which is more complex than what may first appear. As the State has noted, the overall There shall be a presumption that tax impact consists of the interlocking effect of Florida any ... motor vehicle, or other and out-of-state sales taxes, the Florida use tax, and the vehicle purchased in another state, Florida impact fee. We agree with the State that this taxing territory of the United States, system itself, not any single part, must be examined by or the District of Columbia but this Court. The United States Supreme Court itself has titled, registered, or licensed in this warned that reviewing courts must consider actual effects, state is taxable [subject to some not isolated technicalities. American Trucking Assocs., Inc. exceptions not relevant here]. This v. Scheiner, 483 U.S. 266, 295, 107 S.Ct. 2829, 2846, 97 presumption may be rebutted only L.Ed.2d 226 (1987). by documentary evidence *723 that the person owning the ... motor Other than fuel taxes and certain fees not at issue here, the vehicle purchased the ... motor primary tax upon vehicles in Florida is the sales tax, which vehicle in another state, territory of is assessed against all vehicles sold in this state. The sales the United States, or the District of

Columbia six (6) months or more Florida. However, because of the way the legislature chose prior to the time it is brought into to structure its overall tax scheme, there never can be this state. any actual transfer of credit through this statutory cross- reference. This is because the Florida use tax itself is reduced by the out-of-state tax, and any overage thus is Fla.Admin.Code, R. 12A–1.007(2)(a). The rules go on purely a Florida tax. The impact fee, in turn, would be to require that owners present proof that the vehicle reduced by the overage, but this gives no credit for the out- lawfully was subject to the taxing authority of the other of-state tax—only for any remaining Florida tax. jurisdiction and that the tax on the vehicle was paid to that Thus, we can examine the impact of this taxing scheme jurisdiction. 3 Id. through a hypothetical. Assume that a Florida resident purchased a used car titled in another state for $5,000 3 Credit is not allowed for taxes paid to a subject to an out-of-state 6 percent sales tax, and the foreign nation. Fla.Admin.Code R. 12A–1.007(3)(b). applicable sales and use tax in Florida also is 6 percent. Obviously, the Commerce Clause does not extend The tax paid to the other state would be $300, which its free-trade guarantee to jurisdictions outside the would be equal to the Florida use tax. If the vehicle were United States, so the state does not infringe the Constitution by giving no credit for taxes paid to immediately titled in Florida, no use tax would be assessed other nations. because the owner would be entitled to a 100 percent credit based on these facts. Because no Florida use tax is The second problem in use taxes is how to avoid the assessed, the vehicle owner would not be entitled to any double taxation that otherwise might occur if two or more credit against the $295 impact fee. Thus, the overall tax states are taxing the same vehicle. There is a potential would equal $300 paid to the other state plus $295 paid to constitutional pitfall here, based on the possibility that Florida—a total of $595. double taxation itself could be a serious disincentive to free trade among the states. In Williams v. Vermont, 472 Now assume that the same $5,000 used car were purchased U.S. 14, 105 S.Ct. 2465, 86 L.Ed.2d 11 (1985), the Court in Florida from a Florida dealer. In that situation, the expressly reserved judgment on whether the United States purchaser would pay the 6 percent sales tax, or $300. There Constitution requires the states to credit out-of-state sales would be no $295 impact fee because the vehicle either was tax payments against an in-state use tax levied on the previously titled in Florida or is being sold by a Florida same item of personal property. Id. at 21–22, 105 S.Ct. dealer. § 319.231(2)(c), Fla.Stat. (1991). Thus, the total tax at 2471. Thus, the vast majority of American jurisdictions is only $300 for sale of the same automobile entirely within presently give such a credit, id., apparently heeding the Florida. warning flag raised by the nation's high Court. A further examination of the mathematics of this taxing Florida is among them, at least with regard to its use scheme shows the circumstances in which the $295 impact tax. Florida law provides that, once the use tax is fee would be offset by the Florida use tax. So long as the applicable, credit must be given for any “like tax” paid Florida use tax and the out-of-state sales taxes are nearly to another American jurisdiction that is equal to or the same, there would be little if any offset. This would greater than Florida's tax. If the out-of-state tax was be true no *724 matter how expensive or inexpensive less, then the out-of-state dealer is held responsible for the used car might be. Offset would increase only to the paying the difference to Florida. § 212.06(7), Fla.Stat. extent that the out-of-state sales tax or any similar tax is (1991). DOR administrative rules require the owner to very much less than the Florida use tax, or to the extent present documentary evidence that the tax was paid. that an expensive vehicle's sale price exaggerates the dollar Fla.Admin.Code R. 12A–1.007(3)(a). difference between the Florida and out-of-state taxes. In other words, more expensive vehicles are more likely to Of course, the problem immediately arises whether the escape the $295 impact fee. $295 impact fee permits any credit for out-of-state taxes paid on a vehicle. It is true that subsection 319.231(4) In our hypothetical of the $5,000 used car, the use tax expressly provides that the impact fee must be reduced would offset the $295 impact fee only if the out-of-state by an amount equal to any sales or use tax paid to

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 8 Department of Revenue v. Kuhnlein, 646 So.2d 717 (1994) 63 USLW 2271, 19 Fla. L. Weekly S467 sales tax and other similar taxes were at or near zero. within Florida. This situation unquestionably favors in- For example, a zero percent out-of-state tax would mean state interests over out-of-state interests. that Florida would assess a $300 use tax against our hypothetical $5,000 used automobile, fully offsetting the We also believe that the impact fee scheme fails under the $295 impact fee and resulting in a total tax of just $300. 4 United States Supreme Court's “internal consistency” test. However, if the sale price were $30,000, only a one- Under this test, percent difference between the Florida and out-of-state [“]the tax must be such that, if applied by taxes would mean that the $295 impact fee would be every jurisdiction,” there would be no impermissible 5 entirely offset. interference with free trade [among the states].

4 One other noteworthy feature of the impact fee is its Armco, Inc. v. Hardesty, 467 U.S. 638, 644, 104 S.Ct. 2620, highly regressive nature. Because it is set at a flat $295, 2623, 81 L.Ed.2d 540 (1984) (quoting Container Corp. it effectively imposes an increasingly higher tax as a of America v. Franchise Tax Bd., 463 U.S. 159, 169, 103 percentage of total sale price as the price drops. There S.Ct. 2933, 2942, 77 L.Ed.2d 545 (1983)); accord American thus would be some situations in which the total out- Trucking Assocs., Inc. v. Scheiner, 483 U.S. 266, 107 S.Ct. of-state and Florida taxes on the vehicle would exceed 2829, 97 L.Ed.2d 226 (1987). There can be no doubt that its sale price. the impact fee does in fact violate this test. For example, if Georgia and Alabama adopted Florida's impact fee, 5 Suppose the Florida use tax is six percent and the persons in those states would be deterred from coming similar out-of-state tax is only five percent. The out- of-state tax thus would be $1,500, and Florida would to Florida to buy used vehicles. A similar impact fee collect a $300 use tax to offset the lower out-of- throughout the United States clearly would tend to favor state tax. Thus, the $295 impact fee would be entirely in-state commercial interests over out-of-state concerns, offset. thus directly impinging upon the free-trade zone among the states created by the Commerce Clause. We are mindful of the State's argument that every vehicle titled in Florida by some point in time will pay at least [12] Accordingly, we conclude that the Florida impact $295 in taxes or impact fees to Florida. Certainly this 6 fee does in fact result in discrimination against out-of-state will be true in the vast majority of cases, but that economic interests in contravention of the Commerce fact in itself does not dispose of the Commerce Clause Clause. Oregon Waste. To be constitutionally permissible, problem. The Commerce Clause is not concerned with the impact fee thus must be capable of surviving the the overall history of taxes paid to a state during the life “virtually per se invalid” test. This means the State of a vehicle; rather, the Commerce Clause looks to the must *725 show that the statute advances a legitimate question of “differential treatment of in-state and out- local purpose that cannot be adequately served by of-state economic interests that benefits the former and reasonable nondiscriminatory means. Id. As the United burdens the latter.” Oregon Waste, 511 U.S. at ––––, 114 States Supreme Court has explained: S.Ct. at 1350. Our cases require that justifications for discriminatory 6 It might not be true of some very low priced used restrictions on commerce pass the “strictest scrutiny.” vehicles brought into Florida for the first time and The State's burden of justification is so heavy that sold by a Florida dealer. “facial discrimination by itself may be a fatal defect.”

Here, there can be no question but that a burden is placed Id. at ––––, 114 S.Ct. at 1351 (quoting Hughes v. on some out-of-state economic interests. Specifically, Oklahoma, 441 U.S. 322, 337, 99 S.Ct. 1727, 1737, 60 Florida has erected a financial barrier that gives Florida L.Ed.2d 250 (1979)). used-car sellers a substantial advantage over similar out- of-state sellers. In our hypothetical of the $5,000 used [13] On this question, we first address the contention car, an out-of-state sale to a Florida resident would that this Court might eliminate any “fatal defect” by result in a total tax approximately 200 percent of what declaring unconstitutional and then severing the impact- would be paid for the same transaction conducted entirely fee exemption granted to Florida dealers. § 319.231(2)

(c), Fla.Stat. (1991). We find that this will not eliminate vehicles, meanwhile, are more likely to bear the full brunt the entire problem, and in fact would exacerbate still of the fee. This is an irrational distinction with no genuine other problems of a constitutional dimension. Foremost, bearing on the State's objective here. differential treatment still would remain with respect to used vehicles sold by nondealers. Thus, a private We find that Florida is in fact exacting more than a just individual selling an older car would continue to have share against interstate interests here, because there is an advantage over out-of-state dealers or out-of-state at best only a tenuous relationship between the State's individuals selling much the same car. We therefore find objective and the means chosen to raise revenues. that there is no way to sever any portion of the statute to eliminate applicability of the “virtually per se invalid” test. Because the statute must be declared facially unconstitutional, we need not and will not address the There are two elements the State must establish under other issues raised by the parties. We note the procedural the test: (a) that the statute advances a legitimate local issues the State has raised with respect to the civil rights purpose, and (b) that the purpose cannot be adequately plaintiffs. However, even assuming that Section 1983 was served by reasonable nondiscriminatory means. We an inappropriate means of suing in this instance, those assume for present purposes, without deciding, that the parties that chose this method still are entitled to have State has advanced a legitimate local purpose in this their petitions treated as a request for a proper remedy. case: the need to obtain adequate road-maintenance and Art. V, § 2(a), Fla. Const. At a minimum, we would construction revenues from those who use the roads. As be required to treat all of the petitions filed below as the Oregon Waste Court noted, requests for relief by way of declaratory judgment. Relief accordingly will be granted to all on that basis. “It was not the purpose of the commerce clause to relieve those engaged in interstate commerce from their *726 [14] Finally, the State has argued that it should just share of state tax burden[s].” Nevertheless, one of be entitled to develop some form of retroactive remedy the central purposes of the Clause was to prevent States under McKesson Corp. v. Division of Alcoholic Beverages from “exacting more than a just share” from interstate & Tobacco, 496 U.S. 18, 110 S.Ct. 2238, 110 L.Ed.2d commerce. 17 (1990). This presumably would be a retroactive tax against all Florida vehicle titles not previously subject to Oregon Waste, 511 U.S. at ––––, 114 S.Ct. at 1351 (citing the impact fee. Western Live Stock v. Bureau of Revenue, 303 U.S. 250, 254, 58 S.Ct. 546, 548, 82 L.Ed. 823 (1938)). We find that the trial court below gave due consideration to this possibility and was within its discretion in rejecting However, there obviously are less discriminatory methods the State's proposal. While the trial court gave several for Florida to recoup the cost of road construction reasons, we find one sufficient in itself: There would be and maintenance. As one of only many examples, an grave difficulty in assessing a retroactive tax. The record increase in the fuel tax would be far fairer, because fuel below indicates that the Florida Department of Highway consumption has a direct relationship to the wear-and- Safety & Motor Vehicle would be unable to collect the tax tear a vehicle (whether titled in Florida or not) inflicts from a very substantial percentage of title holders, whose on state road systems. Likewise, Florida could impose a addresses cannot be kept current. The Department further mileage tax or could impose the $295 impact fee on all has averred that it lacks the resources necessary to track vehicles titled in Florida, regardless of any previous title down these title holders. history.

[15] As the trial court below noted, the impact fee Moreover, there is no rational reason why the legislature was void from its inception because the legislature acted chose a tax as regressive as this one, in light of the wholly outside its constitutional powers. The only clear purpose announced by the State. Nothing here suggests and certain remedy is a full refund to all who have paid that more expensive vehicles somehow cause less wear- this illegal tax. The result reached by the trial court and and-tear on Florida's roads. Yet, the way this tax is its refund order therefore are approved. We need not and structured, expensive vehicles are more likely to wholly therefore do not address the equal protection arguments avoid paying the $295 impact fee. The least expensive

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 10 Department of Revenue v. Kuhnlein, 646 So.2d 717 (1994) 63 USLW 2271, 19 Fla. L. Weekly S467 raised by the parties, since the statute must be stricken for the Commerce Clause violation. OVERTON, SHAW, KOGAN and HARDING, JJ., and McDONALD, Senior Justice, concur. It is so ordered. GRIMES, C.J., dissents. The Florida Legislature moves for leave to appear in this GRIMES, C.J., OVERTON and HARDING, JJ., and case as amicus curiae solely for the purpose of asking McDONALD, Senior Justice, concur. for a clarification of our opinion with regard to the fiscal prerogatives of the legislative branch. The motion SHAW, J., concurs in result only. is granted, and we readopt and clarify our opinion as follows. ORDERS ON MOTIONS We agree with the Legislature that it has authority to Appellees/Cross–Appellants Adams and Crows' Motion fashion a retroactive remedy under McKesson with respect for Rehearing or Clarification as to Case No. 82,995 is to taxes declared illegal under the Commerce Clause. As hereby denied. McKesson notes, that remedy need not be perfect. In the present case, however, any conceivable retroactive remedy the Legislature might fashion necessarily would be so highly imperfect and involve such delays as to result in OVERTON, SHAW, KOGAN and HARDING, JJ., and fundamental injustice. Accordingly, we believe the trial McDONALD, Senior Justice, concur. court was within its discretion in ordering a refund based GRIMES, C.J., dissents. on the facts at hand. Appellants/Cross–Appellees Department of Revenue, et al.'s Motion to Strike That Part of Appellees' Reply Brief *727 We do not imply, however, that the courts of Not In Accordance With the Florida Rules of Appellate this state can order refunds in any or even most cases Procedure and This Court's Order of January 12, 1994, is of this type. The facts of the present case are unusual hereby denied. because the number of individuals not subject to the illegal tax is enormous, the ability of the state to locate a very substantial percentage of them is unlikely, and the delays that inevitably would result from the effort of GRIMES, C.J., OVERTON, SHAW , KOGAN and locating them would be grossly unfair to all involved— HARDING, JJ., and McDONALD, Senior Justice, most especially those who paid the tax. This situation is concur. substantially different from the facts of McKesson. Appellees/Cross–Appellants David Kuhnlein, et al.'s Motion to Remand Pursuant to Appellate Rule 9.600(b), [16] In so saying we strongly emphasize that the courts or in the Alternative to Stay Defendants From Sending should show great deference to the legislative prerogative. Class Notice Without Court Approval, and supplement If there is any reasonable way that prerogative may be thereto, is hereby denied. honored without substantial injustice to the taxpayers of this state, then a court reviewing a tax case of this type should give the Legislature the opportunity to fashion a GRIMES, C.J., OVERTON, SHAW , KOGAN and retroactive remedy within a reasonable period of time. As HARDING, JJ., and McDONALD, Senior Justice, a general rule, a “reasonable period of time” means by the concur. end of the next regular legislative session plus the period Appellees/Cross–Appellants Adams and Chow's Motion of time in which the Governor must review bills approved for Attorneys Fees is hereby denied. by both houses.

We also note that the Legislature in its motion has represented to this Court that it will not attempt to fashion a retroactive remedy even if given leave to do so. This

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 11 Department of Revenue v. Kuhnlein, 646 So.2d 717 (1994) 63 USLW 2271, 19 Fla. L. Weekly S467 is a fact that factors in our decision on clarification, if only because it tacitly acknowledges our conclusions as to this case. We do believe, however, that it would be of GRIMES, C.J., OVERTON, SHAW , KOGAN and great benefit to the courts if the Legislature sought leave to HARDING, JJ., and McDONALD, Senior Justice, intervene at the trial level in Commerce Clause cases of this concur. type to address the question of a retroactive remedy. When such leave is sought, a trial court clearly would abuse its All Citations discretion by denying leave to intervene. Then the record 646 So.2d 717, 63 USLW 2271, 19 Fla. L. Weekly S467 on appeal would contain a full account of the Legislature's views as to a retroactive remedy.

with respect to rights, status, and other equitable or legal relations, and it should be KeyCite Yellow Flag - Negative Treatment liberally construed. F.S.1989, § 86.101. Distinguished by Westphal v. City of St. Petersburg, Fla., June 9, 2016 582 So.2d 1167 11 Cases that cite this headnote Supreme Court of Florida.

Bob MARTINEZ, et al., [2] Declaratory Judgment Appellants, Cross–Appellees, Subjects of relief in general v. Individuals may challenge validity of statute Mark SCANLAN, et al., in declaratory judgment action. F.S.1989, § 86.021. Appellees, Cross–Appellants. 4 Cases that cite this headnote No. 77179. | June 6, 1991. [3] Declaratory Judgment | Validity of statutes and proposed bills Rehearing Denied Aug. 13, 1991. Although a court may entertain declaratory action regarding statute's validity, there must Synopsis be bona fide need for such declaration Challenge was brought to constitutionality of statute based on present, ascertainable facts or court amending workers' compensation law to reduce benefits. lacks jurisdiction to render declaratory relief. The Circuit Court, Leon County, J. Lewis Hall, J., F.S.1989, § 86.011. declared statute unconstitutional and appeal was taken. The District Court of Appeal certified the case. The 23 Cases that cite this headnote Supreme Court, McDonald, J., held that: (1) statute was unconstitutional due to violation of constitutional requirement that statutes cover only one subject; (2) trial [4] Declaratory Judgment court erred by considering whether individual sections of Procedure in general statute were unconstitutional; and (3) effective date of Absence of party's objection to court voiding of statute was date of Supreme Court decision, entertaining jurisdiction over declaratory rather than date statute first became effective. judgment action regarding constitutionality of a statute does not confer subject- Affirmed in part, and reversed in part. matter jurisdiction upon court to enter such judgment; court must make independent Kogan, J., concurred specially and filed opinion, in which evaluation as to whether a justiciable Barkett, J., concurred. controversy between adverse parties exists. F.S.1989, § 86.011. Barkett, J., concurred in part and dissented in part and filed opinion, in which Shaw, C.J., and Kogan , J., 5 Cases that cite this headnote concurred. [5] Constitutional Law Conditions, Limitations, and Other Restrictions on Access and Remedies West Headnotes (15) Workers' Compensation Compensation in general [1] Declaratory Judgment Statute amending workers' compensation law Object and purpose to reduce benefits in some cases did not Purpose of declaratory judgment statute is to violate state constitutional prohibition against afford relief from insecurity and uncertainty

denying access to courts, on grounds that remain. West's F.S.A. Const. Art. 5, § 3(b)(5); statute, as amended, no longer provided Laws 1989, ch. 89–289, § 1 et seq.; Laws 1990, employees with a reasonable alternative to ch. 90–201, § 1 et seq. common-law tort actions; after amendment compensation law still provided employees 15 Cases that cite this headnote with full medical care and wage loss payments for total or partial disability regardless of fault [8] Statutes and without delay and uncertainty of tort Amendment of invalid or nonexistent litigation, and in cases where employees were provision previously eligible for benefits and no longer Workers' Compensation could obtain them, tort litigation remained Constitutionality of Statutes viable alternative. West's F.S.A. Const. Art. 1, Constitutional violation occurring by passage § 21; Laws 1989, ch. 89–289, § 1 et seq.; Laws of bill embracing workers' compensation and 1990, ch. 90–201, § 1 et seq. unrelated subject was cured by enactment 12 Cases that cite this headnote of amendatory statute separating workers' compensation and other subject, retroactive to date bill was originally enacted into law. [6] Statutes Laws 1990, ch. 90–201, § 1 et seq.; Laws 1991, Labor, employment, and public officials ch. 91–1, § 1 et seq.; ch. 91–5, § 1 et seq.; West's Workers' Compensation F.S.A. Const. Art. 3, § 6. Constitutionality of Statutes Provision of State Constitution requiring 1 Cases that cite this headnote that bills have single subject was violated by passage of bill combining [9] Constitutional Law workers' compensation amendments with Invalidation, annulment, or repeal of legislation concerning comprehensive statutes economic development; required necessary Separation of powers violation does not or appropriate connection between subject automatically mandate that a court declare an matters was not present. Laws 1990, ch. 90– entire statute unconstitutional. 201, § 1 et seq.; West's F.S.A. Const. Art. 3, § 6. Cases that cite this headnote 12 Cases that cite this headnote

[10] Statutes [7] Declaratory Judgment Labor, employment, and public officials Employees, labor relations and Assuming that provisions of workers' unemployment compensation compensation law providing for Supreme In interest of judicial economy, Supreme Court Judicial Nominating Commission Court would decide whether 1990 Workers' control over retention process of newly Compensation Act amendment violated created Industrial Relations Commission “single subject” constitutional provision, judges, and subjecting them to judicial notwithstanding that in 1991 the Legislature disciplinary proceedings, and creating reenacted the amendment as separate acts Workers' Compensation Oversight Board retroactive to the date of the original Act; the violated constitutional prohibitions against 1991 Act was not before the Supreme Court separation of powers, trial court erred and it would be unable to make binding ruling by not finding such provisions severable on its effect, but if a court found the 1991 from remainder of statute; arguably Act could not be constitutionally applied, the unconstitutional provisions were only issue of the validity of the 1990 Act would still procedural and administrative mechanisms

and their severance would not prevent statute from accomplishing its stated intent [13] Statutes —reducing benefits to employees to ease Particular statutes escalating cost of workers' compensation A penal statute declared unconstitutional is coverage. Laws 1990, ch. 90–201, § 1 et seq.; inoperative from time of its enactment, not West's F.S.A. Const. Art. 2, § 3. only and simply from time of court's decision.

11 Cases that cite this headnote 2 Cases that cite this headnote

[11] Declaratory Judgment [14] Statutes Employees, labor relations and Effect of Total Invalidity unemployment compensation In determining whether statute is void Trial court lacked jurisdiction to consider ab initio, Supreme Court distinguishes claims by workers and others alleging between constitutional authority, or power harm from amendments to workers' for enactment, as opposed to form of compensation law reducing benefits, that enactment. procedures placing workers' compensation judges under Supreme Court control as 1 Cases that cite this headnote to retention and discipline, and creating Workers' Compensation Oversight Board [15] Courts were invalid under Declaratory Judgment In general; retroactive or prospective Act; complainants could not allege that they operation were presently being harmed by provisions in Effective date for voiding of unconstitutional question, nor could they allege future harm, as statute amending workers' compensation law the provisions had been repealed. Laws 1990, was filing date of Supreme Court's opinion ch. 90–201, § 1 et seq.; West's F.S.A. Const. declaring statute unconstitutional, rather than Art. 2, § 3. date statute became effective; decision would operate prospectively only. Laws 1990, ch. 90– 2 Cases that cite this headnote 201, § 1 et seq.

[12] Declaratory Judgment 7 Cases that cite this headnote Employees, labor relations and unemployment compensation Parties claiming to be aggrieved by statute amending workers' compensation laws to Attorneys and Law Firms reduce benefits were precluded from claiming *1169 Robert A. Butterworth, Atty. Gen., Mitchell that individual provisions of statute were D. Franks, Sp. Counsel and Harry F. Chiles, Kathleen unconstitutional on due process, access to E. Moore and Louis F. Hubener, Asst. Attys. Gen., courts, equal protection and other grounds, Tallahassee, for Martinez, Menendez, and Lewis. as part of declaratory judgment action; aggrieved parties could only show provisions Daniel Y. Sumner, Tallahassee, for Gallagher. might affect possible future claims and they thus failed to demonstrate sufficient present Mary Ann Stiles and Rayford H. Taylor of Stiles & justiciable controversy. F.S.1989, § 86.011; Taylor, P.A., Tallahassee, for Associated Industries of U.S.C.A. Const.Amend. 14. Florida.

3 Cases that cite this headnote Stanley James Brainerd, Gen. Counsel, Tallahassee, for Florida Chamber of Commerce.

Beach, amici curiae for Lee County Elec. Co-op., and Marguerite H. Davis and Edward L. Kutter of Katz, Harper Bros., Inc., Self Insured Employers. Kutter, Haigler, Alderman, Davis, Marks & Rutledge, P.A., Tallahassee, for Natl. Council on Compensation Ins. Opinion and Employers Ins. of Wausau. McDONALD, Justice. H. Lee Moffitt, Mark Herron, Kirby C. Rainsberger and Christopher R. Haughee of Ackerman, Senterfitt, Eidson We review Scanlan v. Martinez, no. 90–3137 (Fla.2d Cir. & Moffitt, Tampa, for Tampa Bay Area NFL, Inc. and Ct. Dec. 5, 1990), wherein the trial court held chapter South Florida Sports Corp. 90–201, Laws of Florida (the Comprehensive Economic Development Act of 1990), and part of chapter 89–289, Richard A. Sicking, Miami, for Mark Scanlan, Laws of Florida, unconstitutional. On appeal, the district Professional Fire Fighters of Florida, Inc., and Darryl court certified this case as being of great public importance Davis. and requiring immediate resolution. We have jurisdiction. Art. V, § 3(b)(5), Fla. Const. We affirm in part and reverse Fletcher N. Baldwin, Jr., University of Florida College of in part the trial court's decision. Law, Gainesville, Stephen Marc Slepin, Tallahassee, and Jerold Feuer, Miami, for AFL–CIO & IBEW, Local 606, This case involves the validity of the legislature's recent, and Communications Workers of America. comprehensive revision of the workers' compensation laws. In the trial court, Mark Scanlan; Professional Kelly Overstreet Johnson of Broad and Cassel, Fire Fighters of Florida, Inc.; International Brotherhood Tallahassee, for Florida Police Benevolent Ass'n. of Electrical Workers, Local 606; Florida AFL–CIO; Talbot D'Alemberte, Samuel J. Dubbin, Cecilia F. Renn, Communications Workers of America; Bill Stanfill; Jennifer Prior Devin and Richard E. Getchell of Steel, Ralph Ortega; Albert Darryl Davis; and plaintiff/ Hector & Davis, Tallahassee, Florida; G.W. Jacobs, intervenor, Florida Police Benevolent Association, filed Sarasota, H. George Kagan of Miller, Kagan & Chait, for declaratory and injunctive relief requesting a P.A., Deerfield Beach, and Albert W. Frierson and determination of the validity of chapter 90–201 and Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, designated portions of chapter 89–289. In the complaint, Ft. Myers, amici curiae for Florida Const., Commerce, these parties alleged that they were either taxpayers, and Industry Self–Insurers' Fund, Florida Ass'n of Self– employers, employees, *1170 or labor organizations Insurers, and Florida Group Risk Administrators Ass'n, who are interested in, or may be in doubt about, Inc. their rights under the 1989 and 1990 amendments to the workers' compensation law. The main thrust of Joel S. Perwin of Podhurst, Orseck, Josefsberg, Eaton, the complaint was against the 1990 amendments as Meadow, Olin & Perwin, P.A., Miami, amicus curiae for facially unconstitutional as a whole and in part because Academy of Florida Trial Lawyers. of purported single subject, separation of powers, due process, equal protection, and access to court violations. James N. McConnaughhay of McConnaughhay, Roland, The 1989 amendments were claimed to be facially Maida, Cherr & McCranie, P.A., Tallahassee, and S. unconstitutional in part. Defendants Bob Martinez; James Brainerd, Jr., General Counsel, Florida Chamber Tom Gallagher; Hugo Menendez; Gerald Lewis; and of Commerce, Tallahassee, amicus curiae for Florida defendants/intervenors Associated Industries of Florida; Chamber of Commerce Self–Insurance Fund. Florida Chamber of Commerce; National Council Steven A. Rissman and Mark S. Spangler of Rissman, on Compensation Insurance; Employers Insurance of Weisberg, Barrett & Hurt, P.A., Orlando, amici curiae Wausau; Tampa Bay Area NFL, Inc.; and South Florida for Employers Ass'n of Florida, and Florida Fruit and Sports Corporation replied by asserting that the plaintiffs Vegetable Ass'n Self–Insurers Fund. lacked standing to bring suit, that some of the claims were moot or unripe, and that both the 1989 and Albert M. Frierson, Paula F. Kelley and Joseph R. North 1990 amendments were constitutional. Throughout the of Henderson, Franklin, Starnes & Holt, Fort Myers, and remainder of this opinion, we shall refer to the parties H. George Kagan of Miller, Kagan & Chait, Deerfield simply as Scanlan and Martinez.

propounded from curiosity. These The trial court granted declaratory relief, ruling chapter elements are necessary in order to 90–201 facially unconstitutional because its content maintain the status of the proceeding violated the single subject requirement. See art. III, § 6, as being judicial in nature and Fla. Const. The court also found chapter 90–201 facially therefore within the constitutional unconstitutional because it violated separation of powers. powers of the courts. See art. II, § 3, Fla. Const. The court further found individual sections of chapters 90–201 and 89–289 facially unconstitutional but severable. Lastly, the court denied May v. Holley, 59 So.2d 636, 639 (Fla.1952) (emphasis all other challenges to individual sections of chapter 90– added). Accord Williams v. Howard, 329 So.2d 277 201. The court, however, did not grant injunctive relief. (Fla.1976); Bryant v. Gray, 70 So.2d 581 (Fla.1954). Thus, Martinez now brings this appeal, and Scanlan cross- although a court may entertain a declaratory action appeals. regarding a statute's validity, there must be a bona fide need for such a declaration based on present, ascertainable [1] [2] [3] We begin our discussion by analyzing the facts or the court lacks jurisdiction to render declaratory type of relief Scanlan requested at the trial court. A relief. Ervin v. Taylor, 66 So.2d 816 (Fla.1953); see § declaratory judgment is a statutorily created remedy. See 86.011, Fla.Stat. (1989). ch. 86, Fla.Stat. (1989). The purpose of the declaratory judgment statute is to afford relief from insecurity and [4] In the case at bar, Scanlan and Martinez are uncertainty with respect to rights, status, and other disputing the constitutionality of the 1989 and 1990 equitable or legal relations, and it should be liberally amendments to the workers' compensation law. It is a construed. § 86.101, Fla.Stat. (1989). Individuals may close question whether any part of this action properly can challenge the validity of a statute in a declaratory action. be considered under the declaratory judgment act. 1 Even § 86.021, Fla.Stat. (1989). This Court has long held, though the *1171 legislature has expressed its intent that however, that individuals seeking declaratory relief must the declaratory judgment act should be broadly construed, show that there still must exist some justiciable controversy between adverse parties that needs to be resolved for a court to exercise its jurisdiction. Otherwise, any opinion on a there is a bona fide, actual, present statute's validity would be advisory only and improperly practical need for the declaration; considered in a declaratory action. North Shore Bank v. that the declaration should deal Town of Surfside, 72 So.2d 659 (Fla.1954); Schwarz v. with a present, ascertained or Nourse, 390 So.2d 389 (Fla. 4th DCA 1980); see also ascertainable state of facts or Florida Society of Ophthalmology v. State, Department of present controversy as to a state of Professional Regulation, 532 So.2d 1278 (Fla. 1st DCA facts; that some immunity, power, 1988) (a declaratory judgment action will not be permitted privilege or right of the complaining to give rise to a mere advisory opinion). Nevertheless, no party is dependent upon the facts party has raised this issue and, given the importance of or the law applicable to the facts; this case, we hesitantly decline to dismiss this action sua that there is some person or persons sponte. 2 who have, or reasonably may have an actual, present, adverse and 1 antagonistic interest in the subject The parties to this action had little to say about the matter, either in fact or law; that procedural aspect of this proceeding and indeed seem the antagonistic and adverse interest eager to have the statute reviewed section by section. This action has produced myriad briefs from myriad are all before the court by proper parties, none of which now has an actual, pending process or class representation and controversy. that the relief sought is not merely the giving of legal advice by the 2 We caution trial courts, however, to exercise their courts or the answer to questions discretion guardedly when considering requests for a

declaratory judgment on a statute's constitutionality. 323 (1986); Sasso v. Ram Property Management, 452 Even if both parties have no objection to the So.2d 932 (Fla.) (provision which cut off wage-loss court entertaining such an action, mere mutual benefits at age sixty-five did not deny access to courts), agreement between parties cannot confer subject- appeal dismissed, 469 U.S. 1030, 105 S.Ct. 498, 83 matter jurisdiction upon a court. Brautigam v. L.Ed.2d 391 (1984); Acton v. Fort Lauderdale Hospital, MacVicar, 73 So.2d 863 (Fla.1954); Steckel v. Blafas, 440 So.2d 1282 (Fla.1983) (amendment to workers' 549 So.2d 1211 (Fla. 4th DCA 1989); Florida Export compensation law which reduced benefits did not deny Tobacco Co. v. Department of Revenue, 510 So.2d access to courts); Iglesia v. Floran, 394 So.2d 994 936 (Fla. 1st DCA), review denied, 519 So.2d 986 (Fla.1987). (Fla.1981) (amendment to workers' compensation law which repealed right to bring a lawsuit for negligence of [5] We do perceive that the rights and obligations a coworker except in cases of gross negligence did not of some of the parties and many others would be deny access to courts); see Kluger. affected if the act in its entirety is invalid. Thus, we Likewise, we reject Scanlan's claim in the instant case. first address Scanlan's claim that, because the cumulative Although chapter 90–201 undoubtedly reduces benefits to effect of chapter 90–201 is to substantially reduce eligible workers, the workers' compensation law remains preexisting benefits to employees without providing any a reasonable alternative to tort litigation. *1172 It countervailing advantages, the workers' compensation continues to provide injured workers with full medical statute is no longer a reasonable alternative to common- care and wage-loss payments for total or partial disability law remedies and, therefore, violates the access to courts regardless of fault and without the delay and uncertainty 3 provision of our constitution. Kluger v. White, 281 So.2d of tort litigation. Furthermore, while there are situations 1, 4 (Fla.1973), interpreted this constitutional limitation where an employee would be eligible for benefits under the on the legislature as follows: pre–1990 workers' compensation law and now, as a result of chapter 90–201, is no longer eligible, that employee is 3 “Access to courts.—The courts shall be open to every not without a remedy. There still may remain the viable person for redress of any injury, and justice shall be alternative of tort litigation in these instances. 4 As to this administered without sale, denial or delay.” Art. I, § attack, the statute passes constitutional muster. 21, Fla. Const.

4 We are referring to, for example, amendments to [W]here a right of access to the courts for redress for provisions regarding recreational and social activities, a particular injury has been provided by statutory law personal comfort, travelling employees, and the going predating the adoption of the Declaration of Rights of and coming rule. the Constitution of the State of Florida, or where such right has become a part of the common law of the State [6] Next, we address Scanlan's claim that chapter 90–201 pursuant to Fla.Stat. § 2.01, F.S.A., the Legislature is is facially unconstitutional because it violates the single without power to abolish such a right without providing subject requirement. Article III, section 6 of the Florida a reasonable alternative to protect the rights of the Constitution states in pertinent part that “[e]very law shall people of the State to redress for injuries, unless the embrace but one subject and matter properly connected Legislature can show an overpowering public necessity therewith, and the subject shall be briefly expressed in for the abolishment of such right, and no alternative the title.” The purpose of this constitutional prohibition method of meeting such public necessity can be shown. against a plurality of subjects in a single legislative act is This Court previously has rejected claims that workers' to prevent “logrolling” where a single enactment becomes compensation laws violate access to courts by failing a cloak for dissimilar legislation having no necessary or to provide a reasonable alternative to common-law tort appropriate connection with the subject matter. State v. remedies. E.g., Newton v. McCotter Motors, Inc., 475 Lee, 356 So.2d 276 (Fla.1978). The act may be as broad So.2d 230 (Fla.1985) (provision requiring that death as the legislature chooses provided the matters included in must result within one year of a compensable accident the act have a natural or logical connection. Chenoweth v. or following five years of continuous disability to be Kemp, 396 So.2d 1122 (Fla.1981). eligible for death benefits did not deny access to courts), cert. denied, 475 U.S. 1021, 106 S.Ct. 1210, 89 L.Ed.2d We agree with the trial court that chapter 90–201 violates the single subject requirement and is unconstitutional.

Chapter 90–201 essentially consists of two separate a procedural quandary. Considering the declaratory subjects, i.e., workers' compensation and international posture of this case, we are being asked to pass upon trade. While Martinez contends that these subjects are the constitutionality of a statute that now no longer logically related to the topic of comprehensive economic exists, but whose provisions have been reenacted and development, we can find only a tangential relationship made retroactive to the effective date of the challenged at best to exist. We recognize that legislative acts are statute. Nevertheless, although it might seem to be an presumed constitutional and that courts should resolve exercise of judicial futility to render an opinion on the every reasonable doubt in favor of constitutionality. See constitutionality of a statute which no longer exists, State v. Kinner, 398 So.2d 1360 (Fla.1981); Hanson v. see Board of Public Instruction v. Budget Commission, State, 56 So.2d 129 (Fla.1952). Moreover, we have held 167 So.2d 305 (Fla.1964); Myers v. Board of Public that, despite the disparate subjects contained within a Assistance, 163 So.2d 289 (Fla.1964); Northeast Polk comprehensive act, the act did not violate the single County Hospital District v. Snively, 162 So.2d 657 subject requirement because the subjects were reasonably (Fla.1964), the declaratory judgment action in this case, related to the crisis the legislature intended to address. concerning the validity of chapter 90–201, is of sufficient Burch v. State, 558 So.2d 1 (Fla.1990) (1987 Crime importance to require it. The 1991 act is not properly Prevention and Control Act); Smith v. Department of before this Court, and we are unable to make a binding Insurance, 507 So.2d 1080 (Fla.1987) (1986 Tort Reform ruling on its effect. Nevertheless, if a court were to find and Insurance Act). In the instant case, however, the that the 1991 act could not be constitutionally applied subjects of workers' compensation and international because of the reenacted provisions, the question of the trade are simply too dissimilar and lack the necessary constitutionality of chapter 90–201 would still remain. We logical and rational relationship to the legislature's stated wish to avoid such possible duplication of effort to the purpose of comprehensive economic development to pass extent possible. 5 constitutional muster. See Bunnell v. State, 453 So.2d 808 (Fla.1984). 5 In some other cases, this Court has declined to rule on the validity of either an original or a subsequent Our inquiry as to this issue, however, does not enactment. See Board of Pub. Instruction v. Budget end at this point. After the trial court rendered its Comm'n, 167 So.2d 305 (Fla.1964); Myers v. Board of declaratory judgment in December 1990, the legislature Pub. Assistance, 163 So.2d 289 (Fla.1964); Northeast convened a special session in January 1991 specifically Polk County Hosp. Dist. v. Snively, 162 So.2d 657 to address problems with the workers' compensation (Fla.1964). In those cases, we remanded to the trial amendments of chapter 90–201. In this special session, courts for reconsideration in light of the subsequent the legislature separated the international trade and amendments. In the instant case, we could likewise workers' compensation provisions into two distinct bills remand to the trial court. Considering the numerous and reenacted both into law. Chs. 91–1, 91–5, Laws of parties and briefs filed, it is simply, in an exercise of Fla. The legislature also expressly provided that these judicial economy, more prudent to dispose of at least two acts would be applied retroactively to July 1, 1990, part of the question at this time. the original effective date of chapter 90–201. Martinez [9] We need not address Scanlan's claim that chapter 90– contends that this legislative action “cures” any single 201 is facially unconstitutional for violating separation of subject deficiencies of chapter 90–201 and effectively powers because the predicate for the trial judge's action renders the trial court's decision on this issue moot. was eliminated in the 1991 act; but, we comment for future guidance only. In its declaratory judgment, the trial court [7] [8] It appears that this argument has merit. The ruled that “if the separation of powers rule is violated then 1991 act reaffirmed the 1990 act except as to some the entire statute is negated.” We do not find this to be an of the provisions found suspect by the trial judge. accurate statement of the law. As we stated in Eastern Air The 1991 act clearly cured the single subject objection Lines, Inc. v. Department of Revenue, 455 So.2d 311, 317 and demonstrated the legislature's intent to amend (Fla.1984), appeal dismissed, 474 U.S. 892, 106 S.Ct. 213, the preexisting workers' compensation act without the 88 L.Ed.2d 214 (1985): appendage of the international trade legislation. Having said that, we find ourselves in somewhat of *1173

the declaratory judgment act and erred in doing so. Section 86.021 states in pertinent part: It is a fundamental principle that a statute, if constitutional in one part and unconstitutional in another Any person claiming to be interested part, may remain valid except or who may be in doubt about his for the unconstitutional portion. rights under a deed, will, contract, However, this is dependent upon or other article, memorandum, or the unconstitutional provision being instrument in writing or whose severable from the remainder of rights, status, or other equitable or the statute. The severability of a legal relations are affected by a statutory provision is determined by statute ... may have determined any its relation to the overall legislative question of construction or validity intent of the statute of which it arising under such statute ... and is a part, and whether the statute, obtain a declaration of rights, status, less the invalid provisions, can still or other equitable or legal relations accomplish this intent. thereunder.

See Wright v. State, 351 So.2d 708 (Fla.1977); Thus, before Scanlan may bring a declaratory action Presbyterian Homes v. Wood, 297 So.2d 556 (Fla.1974); concerning the statute's validity, he must show that his Cramp v. Board of Public Instruction, 137 So.2d 828 rights, status, or other equitable or legal relations “are (Fla.1962). Thus, a separation of powers violation does affected by a statute.” There must be a bona fide need not automatically mandate that a court declare the entire based on present, ascertainable facts for an action to be statute unconstitutional. See Avila South Condominium considered under the declaratory judgment act. Holley; Association, Inc. v. Kappa Corp., 347 So.2d 599 (Fla.1977). Williams. Scanlan has failed to show a present need for the adjudication of the provisions relating to the IRC, the [10] The trial court found that provisions vesting the WCOB, legal counsel, or the appropriation of executive Supreme Court Judicial Nominating Commission with branch trust fund moneys to the WCOB. He does not the ability to control the retention process of the newly allege that any claim has been affected by these provisions; created Industrial Relations Commission (IRC) judges; the only basis for his requested declaratory relief is that subjecting those judges to the disciplinary processes of these provisions might affect a future claim. As we earlier the Judicial Qualification Commission; and creating the suggested, it is well-settled that courts will not render, Workers' Compensation Oversight Board (WCOB), the in the form of a declaratory judgment, what amounts legal counsel, and appropriating funds to the WCOB to an advisory opinion at the instance of parties who were unconstitutional on separation of powers grounds. show merely the possibility of legal injury on the basis Assuming arguendo that these provisions indeed were of a hypothetical state of facts which have not arisen unconstitutional, the trial court erred by not finding and are only contingent, uncertain, and rest in the future. them severable from the remainder of chapter 90–201. Labella v. Food Fair, Inc., 406 So.2d 1216 (Fla. 3d DCA The provisions were only procedural and administrative 1981); see Williams; Bryant; Okaloosa Island Leaseholders mechanisms, and their severance would not prevent Association, Inc. v. Okaloosa Island Authority, 308 So.2d chapter 90–201 from accomplishing its stated intent— 120 (Fla. 1st DCA 1975). Nor will Scanlan be able to make reducing benefits to employees to ease the escalating costs such a showing in the future because the legislature, in its of workers' compensation coverage. 1991 special session, repealed those provisions.

[11] *1174 Moreover, because any unconstitutionality [12] Lastly, we comment on Scanlan's claims that of these provisions would not render chapter 90–201 individual provisions of chapters 90–201 and 89–289 unconstitutional in its entirety, the trial court had no are unconstitutional on due process, access to courts, jurisdiction to consider their validity individually under equal protection, and other grounds. These claims cannot

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 8 Martinez v. Scanlan, 582 So.2d 1167 (1991) 16 Fla. L. Weekly S427, 16 Fla. L. Weekly S443 properly be considered in a declaratory action at this time. 347 So.2d 1024 (Fla.1977), held section 194.042, Florida Scanlan can only show that these provisions might affect Statutes (1975), which provided a method for determining possible future claims. Therefore, the trial court erred just valuation for tax purposes, to be unconstitutional. by passing on the constitutionality of these provisions At the same time, this Court held that its decision would in this case. See Williams; Bryant; Labella. Although be prospective only and would not affect any valuation the disputing parties in the instant case may have previously determined pursuant to the statute. demonstrated a sufficient justiciable controversy to obtain a declaratory judgment regarding the validity of chapter Interlachen Lakes Estates, Inc. v. Snyder, 304 So.2d 433 90–201 in its entirety, they have not made such a showing (Fla.1973), held unconstitutional a statute authorizing as to individual provisions of the act. 6 platted land unsold as lots to be valued for tax assessment purposes on the same basis as unplatted acreage of similar character until sixty percent of such land had 6 De Ayala v. Florida Farm Bureau Casualty Ins. Co., been sold. This Court specified that its decision would 543 So.2d 204 (Fla.1989), and Orr v. Trask, 464 So.2d operate prospectively from the date of the opinion because 131 (Fla.1985), are examples of proper challenges to individual provisions of the workers' compensation persons had relied on the statute, assuming it to be laws under the declaratory judgment act. valid. Furthermore, in Aldana v. Holub, 381 So.2d 231 (Fla.1980), we struck down Florida's Medical Mediation We therefore hold that the trial court correctly declared Act as unconstitutional in its entirety because it violated chapter 90–201 facially unconstitutional for the single the due process clause, but ruled that the declaration of subject violation and correctly rejected the contention that unconstitutionality would have prospective application chapter 90–201 unconstitutionally denied access to courts. only. We reverse the remainder of its decision.

There are also a number of United States Supreme Court [13] [14] We must now determine the effective cases which have held statutes unconstitutional while at date of our ruling. Clearly, a penal statute declared the same time applying those rulings on a prospective unconstitutional is inoperative from the time of its basis only. For example, in Cipriano v. City of Houma, enactment, not only and simply from the time of the 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969), the court's decision. Russo v. State, 270 So.2d 428 (Fla. Court held unconstitutional a Louisiana statute which 4th DCA 1972). In determining whether a statute gave only “property taxpayers” the right to vote in is void ab initio, however, this Court seemingly has elections called to approve the issuance of revenue bonds distinguished between the constitutional authority, or by a municipal utility. The Court applied its decision power, for the enactment as opposed to the form of the prospectively, stating: enactment. McCormick v. Bounetheau, 139 Fla. 461, 190 So. 882 (1939). Here, we are declaring chapter 90–201 unconstitutional not because the legislature lacked the power to enact it, but because of the form of its enactment. Significant hardships would be imposed on cities, bondholders, and [15] In Gulesian v. Dade County School Board, 281 others connected with municipal So.2d 325 (Fla.1973), *1175 this Court affirmed the trial utilities if our decision today were court's ruling that a statute purporting to authorize school given full retroactive effect. Where a districts to levy ad valorem taxes in excess of ten mills decision of this Court could produce without a vote of the electorate was unconstitutional. substantial inequitable results if However, the trial judge also found that a retroactive applied retroactively, there is ample application of his ruling to require refunds would work basis in our cases for avoiding the great hardship on the school board out of proportion to “injustice or hardship” by a holding the interest of the individual taxpayers as compared to of nonretroactivity. the needs of school children of the county. This Court approved “the reasoning of the trial judge and his resort to equitable considerations in deciding this case.” Id. at 327. Id. at 706, 89 S.Ct. at 1900. Other Supreme Court decisions Likewise, ITT Community Development Corp. v. Seay, have applied the same principle. E.g., Northern Pipeline

Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, It is so ordered. 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982); Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d OVERTON, GRIMES and HARDING, JJ., concur. 296 (1971); Lemon v. Kurtzman, 411 U.S. 192, 93 S.Ct. 1463, 36 L.Ed.2d 151 (1973). Most recently, the United KOGAN, J., concurs specially with an opinion, in which States Supreme Court applied this principle in American BARKETT, J., concurs. Trucking Associations, Inc. v. Smith, 496 U.S. 167, 110 S.Ct. 2323, 110 L.Ed.2d 148 (1990). 7 BARKETT, J., concurs in part and dissents in part with an opinion, in which SHAW, C.J. and KOGAN, J., concur. 7 In so doing, it distinguished McKesson Corp. v. KOGAN, Justice, specially concurring. Division of Alcoholic Beverages & Tobacco, 496 U.S. I concur with the majority that the statute is 18, 110 S.Ct. 2238, 110 L.Ed.2d 17 (1990), wherein the unconstitutional because it violates the single-subject Court stressed the fact that the state had continued to requirement of the Florida Constitution. Therefore, all require the tax to be paid even after the lower court other issues raised by the petitioner are moot at this time. declared the statute invalid and the state should have If a new challenge is raised as to the constitutionality of known it to be invalid. the statute as enacted in 1991, then it would be proper for When the legislature enacted the 1991 curative statutes in the Court to rule on it at that time. special session, it expressly stated that those provisions were retroactively applicable to the effective date of chapter 90–201. Thus, it is evident that the legislature sought to avoid the uncertainties and problems arising BARKETT, J., concurs. from declaring this statute void ab initio. While we do not explicitly rule on the validity of the retroactivity BARKETT, Justice, concurring in part, dissenting in part. provisions of the 1991 act, 8 *1176 we acknowledge the I agree with the majority and Justice Kogan that the legislature's perception of the substantial impact on the statute at issue violates the single-subject requirement entire workers' compensation system if we were to hold of article III, section 6 of the Florida Constitution. chapter 90–201 void ab initio. Accordingly, we should not address the other issues raised in the challenge at this time. 9 8 In Sullivan v. Mayo, 121 So.2d 424 (Fla.1960), cert. denied, 133 So.2d 647 (Fla.1961), we held 9 Cf. Division of Alcoholic Beverages & Tobacco that substantive rights are fixed at the time of the v. McKesson Corp., 524 So.2d 1000 (Fla.1988) injury to the employee, and courts have declined (declining to address other challenges to tax- to apply retroactively amendments to the workers' preference scheme once it was declared violative of compensation laws. On the other hand, in Coon v. commerce clause), rev'd on other grounds, 496 U.S. 18, Board of Pub. Instruction, 203 So.2d 497 (Fla.1967), 110 S.Ct. 2238, 110 L.Ed.2d 17 (1990). the Court indicated that the legislature has the power to ratify, validate, and confirm any act or proceeding I also believe, however, that the majority errs in the which it could have authorized in the first place. prospective application of its opinion. When a court declares a statute facially unconstitutional, it means, in Considering all of these factors, we conclude that we can, plain English, that the enactment has been null and void and should, hold that the effective date of voiding chapter from the outset. It is a declaration that the legislature 90–201 is the date of the filing of this opinion. Our decision acts outside its power when it contravenes constitutional shall operate prospectively only. dictates.

Because of the unusual procedural posture of this Having decided that this legislative enactment is a facially proceeding, we advise that our ruling does not preclude unconstitutional violation of the single-subject rule, the any party with a specific controversy from raising any Court has no power to breathe constitutional life into constitutional issue as applied to that party. it for the period between its enactment and the Court's

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 10 Martinez v. Scanlan, 582 So.2d 1167 (1991) 16 Fla. L. Weekly S427, 16 Fla. L. Weekly S443 declaration of facial invalidity. How can a court require American Trucking Ass'ns, Inc. v. Smith, 496 U.S. 167, compliance with an act it says the legislature had no 110 S.Ct. 2323, 2343, 110 L.Ed.2d 148 (1990) (Scalia, authority to enact? Logically, it cannot, judicial fiat J., concurring in the judgment) (emphasis in original) notwithstanding. As Justice Scalia so clearly explained: (citations omitted).

I recognize that in the past the Court has ordered I share Justice STEVENS' prospective application of an opinion following a perception that prospective successful constitutional challenge. See, e.g., Aldana decisionmaking is incompatible with v. Holub, 381 So.2d 231 (Fla.1980) (holding medical the judicial role, which is to say mediation act violates due process but applying decision what the law is, not to prescribe prospectively). With all due respect, it did so, as it does what it shall be.... [W]hether here, without analysis and without any logical support. our decision ... shall “apply” While I sympathize with the administrative difficulties retroactively[ ] presupposes a view of that accompany such a ruling, I do not believe it is our decisions as creating the law, as the function of the judiciary to suspend constitutional opposed to declaring what the law principles to accommodate administrative convenience. already is. Such a view is contrary to Thus, despite its laudable intent, I dissent from the that understanding of “the judicial majority's decision to “apply” its decision prospectively Power,” which is not only the only. 10 common and traditional one, but which is the only one that can justify 10 courts in denying force and effect I do not suggest that the answer to this question might to the unconstitutional enactments not be different had the legislature, as in American Trucking Associations, Inc. v. Smith, 496 U.S. 167, of duly elected legislatures.... To 110 S.Ct. 2323, 110 L.Ed.2d 148 (1990), enacted a hold a governmental act to be law which was “lawful” at the time of its enactment unconstitutional is not to announce because of an earlier court's declaration of validity, that we forbid it, but that the i.e., “when past precedent should be applied to a case Constitution forbids it; and when, before the court.” Id. 110 S.Ct. at 2340 (emphasis as in this case, the constitutionality added); see United States v. Estate of Donnelly, 397 of a state statute is placed U.S. 286, 295, 90 S.Ct. 1033, 1038–39, 25 L.Ed.2d 312 in issue, the question is not (1970) (Harlan, J., concurring). “In those relatively whether some decision of ours rare circumstances where established precedent is “applies” in the way that a law overruled, the doctrine of nonretroactivity allows a applies; the question is whether court to adhere to past precedent in a limited number the Constitution, as interpreted in of cases, in order to avoid ‘jolting the expectations of parties to a transaction.’ ” 110 S.Ct. at 2341 that decision, invalidates the statute. Smith, (quoting Donnelly, 397 U.S. at 295, 90 S.Ct. at 1038– Since the Constitution does not 39 (Harlan, J., concurring)). change from year to year; since it does not conform to our decisions, but our decisions are supposed SHAW, C.J. and KOGAN, J., concur. *1177 to conform to it; the notion that our interpretation of the All Citations Constitution in a particular decision could take prospective form does 582 So.2d 1167, 16 Fla. L. Weekly S427, 16 Fla. L. Weekly not make sense. S443