Jose Oliva, in his official capacity as Speaker of the Florida House of Representatives Bill Galvano, in his official capacity as President of the Florida Senate v. Florida Wildlife Federation, Inc., Florida Defenders of the Environment, Inc. ( 2019 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D18-3141
_____________________________
JOSE OLIVA, in his official
capacity as Speaker of the
Florida House of
Representatives; BILL GALVANO,
in his official capacity as
President of the Florida Senate;
the FLORIDA LEGISLATURE; the
DEPARTMENT OF AGRICULTURE
AND CONSUMER SERVICES; the
COMMISSIONER OF
AGRICULTURE; the DEPARTMENT
OF ENVIRONMENTAL
PROTECTION; the SECRETARY OF
THE DEPARTMENT OF
ENVIRONMENTAL PROTECTION;
the FISH AND WILDLIFE
CONSERVATION COMMISSION; the
EXECUTIVE DIRECTOR OF THE
FISH AND WILDLIFE
CONSERVATION COMMISSION; the
DEPARTMENT OF STATE; and the
SECRETARY OF STATE,
Appellants,
v.
FLORIDA WILDLIFE FEDERATION,
INC., FLORIDA DEFENDERS OF
THE ENVIRONMENT, INC., ET AL.,
Appellees.
_____________________________
On appeal from the Circuit Court for Leon County.
Charles W. Dodson, Judge.
September 9, 2019
BILBREY, J.
In 2014, the voters of Florida overwhelmingly approved a
ballot measure to amend the Florida Constitution. That ballot
measure became section 28 of Article X of the Florida Constitution.
Since then, two separate suits were filed by various plaintiffs
against various state actors alleging that certain appropriations
were contrary to section 28; those suits were consolidated. A final
summary judgment was thereafter entered holding that the
legislature had not complied with section 28 and that judgment is
now before us. As explained below, we reverse the summary
judgment and remand for further proceedings.
BACKGROUND
In 2014, the voters of Florida approved adding Article X,
section 28 to the Florida Constitution. It provides:
SECTION 28. Land Acquisition Trust Fund. -
(a) Effective on July l of the year following passage of this
amendment by the voters, and for a period of 20 years
after that effective date, the Land Acquisition Trust Fund
shall receive no less than 33 percent of net revenues
derived from the existing excise tax on documents, as
defined in the statutes in effect on January l, 2012, as
amended from time to time, or any successor or
replacement tax, after the Department of Revenue first
deducts a service charge to pay the costs of the collection
and enforcement of the excise tax on documents.
(b) Funds in the Land Acquisition Trust Fund shall be
expended only for the following purposes:
2
(1) As provided by law, to finance or refinance:
the acquisition and improvement of land, water
areas, and related property interests, including
conservation easements, and resources for
conservation lands including wetlands, forests,
and fish and wildlife habitat; wildlife
management areas; lands that protect water
resources and drinking water sources, including
lands protecting the water quality and quantity
of rivers, lakes, streams, springsheds, and lands
providing recharge for groundwater and aquifer
systems; lands in the Everglades Agricultural
Area and the Everglades Protection Area, as
defined in Article II, Section 7(b); beaches and
shores; outdoor recreation lands, including
recreational trails, parks, and urban open space;
rural landscapes; working farms and ranches;
historic or geologic sites; together with
management, restoration of natural systems,
and the enhancement of public access or
recreational enjoyment of conservation lands.
(2) To pay the debt service on bonds issued
pursuant to Article VII, Section 11(e).
(c) The moneys deposited into the Land Acquisition Trust
Fund, as defined by the statutes in effect on January 1,
2012, shall not be or become commingled with the general
revenue fund of the state.
In 2015, a complaint for declaratory and supplemental relief
was filed by the Florida Wildlife Federation (FWF) and several
other plaintiffs. 1 The named defendants were Andy Gardiner,
1 The other plaintiffs in that action were St. Johns
Riverkeeper, Inc., the Environmental Confederation of Southwest
Florida, and Manley Fuller, a Florida taxpayer, a resident of
Wakulla County, and president of the FWF. The Sierra Club, Inc.,
was later added as a plaintiff in the first amended complaint. For
3
then President of the Florida Senate, and Steve Crisafulli, then
Speaker of the Florida House, and the Florida Legislature. Jeff
Atwater, then Chief Financial Officer of the State of Florida, was
later added as a defendant. The gravamen of the complaint was
that certain appropriations which utilized revenue from the Land
Acquisition Trust Fund (LATF) were not permissible under that
provision and hence were unconstitutional. After several
amendments to the complaint, FWF moved for summary
judgment.
In a separate proceeding, the Florida Defenders of the
Environment, Inc., and other individual plaintiffs 2 (collectively
“FDE”) filed suit against the Florida Secretary of State, the Florida
Secretary of Agriculture, the Director of the Florida Fish and
Wildlife Commission, and the Secretary of the Florida Department
of Environmental Protection. By that complaint, later amended,
FDE sought a declaration that certain expenditures made by the
defendant agencies were violative of LATF. FDE also moved for
summary judgment.
The separate proceedings were consolidated. Certain
affidavits and other matters were attached to the various
pleadings filed by plaintiffs and defendants. A hearing was then
held on the pending motions for summary judgment. After receipt
of extensive argument, the trial court granted FDE’s summary
judgment motion with the following oral ruling:
All counsel have done a very, very good job of putting
forth their respective positions in the case, and we’re
obviously dealing with a very important issue of the
Constitution and this citizen initiative that, according to
what I’ve read in the file and what I recall, was passed by
a very large majority of the voters.
purposes of brevity, all of the plaintiffs in that action will be
referenced by the single designation FWF.
2The individual plaintiffs were Stephen J. Robitaille, Joseph
W. Little, James P Clugston, Lola Haskins, Stephen M. Holland,
and W. Thomas Hawkins.
4
I read the amendment in the manner interpreted by
Mr. Little, and that is, when you read Article X, Section
28, subsection 1 -- and maybe it could have been drafted
differently. I would imagine that a lot of thought and
work went into drafting that amendment. But I read it
as saying, okay, the Land Acquisition Trust Fund is going
to get the tax money that is talked about in the beginning
of the statute, and I think that goes on for 20 years.
And I read that -- when I read it in its entirety, and
I’ve read it now well over a hundred times, I come to the
conclusion that it clearly refers to conservation lands
purchased after the effective date of the amendment.
And in doing that I looked back over what the Florida
Supreme Court said in 2013, when it unanimously
approved the amendment and the title and the ballot
summary and posed the question, for example, of does
that ballot title and summary fairly inform the voter of
the chief purpose of the amendment, whether the
language of the title and summary misleads the public,
and all that goes with that, I have to conclude that the
statute is meant to say everything that goes in that fund
can only be used for conservation lands purchased after
the date that it goes into effect.
As for its pending, more limited motion for summary
judgment, FWF announced to the court it had nothing to argue
given the trial court’s ruling on FDE’s motion. A written final
order was thereafter entered.
In its judgment on the consolidated case, the trial court found
that the “plain meaning” of section 28 is that “funds in the Land
Acquisition Trust Fund can be expended only for the (1) acquisition
of conservation lands, and (2) the improvement, management,
restoration and enhancement of public access and enjoyment of
those conservation lands purchased after the effective date of
the amendment” in 2015. (Emphasis added).
In so finding, the trial court noted that the title of the
amendment (“Land Acquisition Trust Fund”) is “an important part
of what makes the language [of section 28] so unambiguous.” The
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purpose of section 28 is for the acquisition of land, per the title, the
trial court reasoned.
The trial court further explained its reasoning by noting that
a long list is given in subsection (b) of types of conservations lands
which may be acquired by LATF expenditures. At the end of the
long list of types of conservation lands is the phrase “together with
management, restoration of natural systems, and the
enhancement of public access or recreational enjoyment of
conservation lands.” The phrase “together with” is an important
one, as the trial court explained:
The connecting words “together with” does more than add
one group to the list - it also attaches it to the clauses
preceding it. After conservation lands are first acquired,
they then may be managed or restored so that public
enjoyment of them is enhanced. This is the plain
meaning of the text, and it is the only reading of that
subsection that gives effect to all the words, the grammar
and punctuation.
Besides the title of the provision and the plain meaning of the
words of the provision, the trial court considered the ballot title
and summary put before the voters. That ballot title was: “Water
and Land Conservation – Dedicates Funds to Acquire and Restore
Florida Conservation and Recreation Lands.”
As for the ballot summary, it provided: “Funds the Land
Acquisition Trust Fund to acquire, restore, improve, and manage
conservation lands.” The trial court observed that the summary
then listed those conservation lands that “can be acquired and then
restored, improved, and managed.” The Florida Supreme Court,
in its review of the ballot initiative, held the title and summary
were “straightforward and accurate.” Advisory Op. to Att’y Gen. re
Water & Land Conservation – Dedicates Funds to Acquire and
Restore Fla. Conservation and Recreation Lands, 123 So. 3d 47, 52
(Fla. 2013).
The trial court reviewed the history of the LATF, which was
originally added to the Florida statutes as part of the Outdoor
Recreation and Conservation Act of 1963. Ch. 63-36, § 1, Laws of
Fla. The LATF was then made a part of the 1885 Florida
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Constitution by amendment in 1965. See Art. IX, § 17, Fla. Const.
(1965). That amendment, however, was by its own terms to last
only 50 years. The 2014 amendment, which became Article X,
section 28 of the Florida Constitution, was intended to replace the
expired version.
The trial court noted that the Legislature and State agencies
commingled LATF funds with other appropriations despite the
lack of constitutional authorization for such co-mingling. In fact,
subsection (c) of Article X, section 28 specifically forbids co-
mingling of LATF revenue with general revenue. The trial court
found that the Legislature and other defendants admitted that “no
existing programs could have been shifted from other funding
sources to the Land Acquisition Trust Fund.”
Given all the above, the trial court concluded that the “clear
intent was to create a trust fund to purchase new conservation
lands and take care of them. The conservation lands the State
already owned were to be taken care of, certainly, but from non-
trust money.” Thus, the trial court held that Article X, section 28:
1. creates a fund for the acquisition of conservation
lands and property interests the State did not own prior
to the effective date of the amendment and for the
improvement, management, restoration, and
enhancement of those newly acquired lands;
2. forbids LATF revenue to be used on land acquired
before the effective date of the amendment;
3. prohibits commingling of LATF revenue with
general revenue.
The trial court held further that agencies must track
expenditures from the LATF to ensure LATF compliance. Finally,
the trial court declared some 100 appropriations unconstitutional.
Following entry of this final summary judgment, the
defendants moved for rehearing. A motion to disqualify the trial
7
judge was also filed by the legislative defendants. All of these
motions were denied. Appellants then brought this appeal. 3
ANALYSIS
A final summary judgment is reviewed de novo. Treasure
Coast Marina, LC v. City of Fort Pierce, 219 So. 3d 793 (Fla. 2017);
Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126(Fla. 2000). A question of constitutional law is also reviewed de
novo. Treasure Coast; Lewis v. Leon Cty., 73 So. 3d 151 (Fla. 2011).
A court’s task in “constitutional interpretation follows principles
parallel to those of statutory interpretation.” Zingale v. Powell,
885 So. 2d 277, 282 (Fla. 2004); Coastal Fla. Police Benev. Ass’n,
Inc. v. Williams, 838 So. 2d 543, 548 (Fla. 2003) (“The rules which
govern the construction of statutes are generally applicable to the
construction of constitutional provisions.”). Therefore, a reviewing
court’s analysis begins with the plain text of the constitution. See
Benjamin v. Tandem Healthcare, Inc., 998 So. 2d 566 (Fla. 2008);
Florida Soc’y of Ophthalmology v. Fla. Optometric Ass’n, 489 So.
2d 1118 (Fla. 1986). “The words of the constitution ‘are to be
interpreted in their most usual and obvious meaning, unless the
text suggests that they have been used in a technical sense.’”
Lewis, 73 So. 3d at 153 (quoting Wilson v. Crews, 34 So. 2d 114,
3 Fifteen amici appeared in this appeal, with three separate
friend of the court briefs in support of the Appellants, four briefs
in support of FWF and FDE, and one brief from, among others, the
successor to the entity which initially sponsored the amendment
not explicitly supporting either side. The amici in support of
Appellants, in general, expressed concern that if the final
judgment were not reversed, millions of dollars in current
appropriations (and potentially billions of dollars in future
appropriations) for restoration of the Everglades, beaches, springs,
lakes, rivers, and estuaries would be at risk since most of those
resources are already owned by the State. The amici in support of
FWF and FDE, in general, countered that the LATF should only
be used for acquiring and maintaining new lands not already
owned by the State and that funds from general revenue should be
appropriated for the maintenance or improvement of existing
environmental projects. We appreciate the input of all amici.
8
118 (Fla. 1948)). If the language of a constitutional provision “is
clear, unambiguous, and addresses the matter in issue, then it
must be enforced as written.” Florida Soc’y of Ophthalmology, 489
So. 2d at 1119 (Fla.1986).
A reviewing court should also construe the text in a manner
consistent with the intent of the framers and voters. See
Caribbean Conservation Corp., Inc. v. Fla. Fish & Wildlife
Conservation Comm’n, 838 So. 2d 492 (Fla. 2003). Voter intent is
discerned through the plain meaning of the text. “We are obligated
to give effect to [the] language [of a Constitutional amendment]
according to its meaning and what the people must have
understood it to mean when they approved it.” City of St.
Petersburg v. Briley, Wild & Assocs., Inc., 239 So. 2d 817, 822
(Fla.1970); see Benjamin, 998 So. 2d at 570.
While the trial court purported to construe the plain meaning
of the constitutional text, that provision does not plainly restrict
the use of LATF revenue to improvement, management,
restoration, or enhancement of lands only acquired after 2015.
Subsection (b) of the amendment subsection authorizes LATF
revenue to be used to finance the acquisition of land, water areas,
easements, and the like. The subsection also authorizes
refinancing. That the text specifically authorizes refinancing
suggests that property for which the State already owns title is
within the purview of permissible LATF activities.
The subsection further authorizes LATF revenue to finance
the improvement of land, water areas, easements, and the like.
There is no explicit limitation in the text that restoration activities
must be on State owned lands. Indeed, the text indicates that
restoration can occur on “working farms and ranches,” which
presumably would not be owned by the State.
Further still, the text does not plainly limit the improvement
of property to those properties only recently acquired. Instead, the
plain words of the subsection, as well as the placement of the only
colon in subsection (b), indicate that acquisition and improvement
are separate but coequal activities for LATF revenue.
As for the phrase “together with management, restoration of
natural systems, and the enhancement of public access or
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recreational enjoyment of conservation lands” at the end of the
subsection, it would be grammatically incorrect to assume, as the
trial court did, that this phrase modifies all which comes before it
in subsection (b). As noted in the friend of the court brief of Florida
Conservation Voters, Inc., the successor to the sponsor of the
citizen’s initiative that became Article X, section 28, the phrase
“together with” generally means “in addition to” or “in association
with.” See Merriam-Webster’s Dictionary https://www.merriam-
webster.com/dictionary/together%20with (last visited Aug. 6,
2019). The plain words “management,” “restoration,” and
“enhancement” authorize expenditure of LATF funds on activities
not expressly concerned with acquisition or improvement per se.
Thus, management of an existing natural resource, which is
already owned by the State and which is not in immediate need of
improvement, is apparently authorized by subsection (b).
It should be noted that when the Florida Supreme Court
considered the ballot initiative, it did not determine how LATF
revenue could be spent. Instead, its inquiry was three-fold. First,
it considered whether the proposed amendment satisfied the
single-subject requirement of Article XI, section 3 of the Florida
constitution and found it did. Advisory Op. to Att’y Gen. re Water
& Land Conservation, 123 So. 3d at 51.
Second, the Supreme Court considered whether the financial
impact statement prepared for the ballot measure was clear,
unambiguous, no more than seventy-five words, and addressed
only estimated increases or decreases in revenues or costs to state
and local governments. Id. at 52. The Supreme Court found that
the financial impact statement satisfied these requirements. Id.Third, and importantly for our purposes, the Supreme Court
considered, as required by section 101.161(1), Florida Statutes
(2012), whether the ballot title and summary fairly informed the
voters of the chief purpose of the amendment and was not
misleading. The Supreme Court observed that both
the title and summary state that the prosed amendment
will dedicate documentary tax revenue to the Land
Acquisition Trust Fund. The title includes the language
“Dedicates Funds to Acquire and Restore Florida
Conservation and Recreation Lands,” and the summary
10
begins with the clause “Funds the Land Acquisition
Trust Fund,” describes the uses of the Fund, and
explains that the funds will be obtained “by dedicating
33 percent of net revenues from the existing excise tax
on documents for 20 years.” The title and summary are
straightforward and accurate.
Advisory Op. to Att’y Gen. re Water & Land Conservation, 123 So.
3d at 52. There was no comment by the Supreme Court as to
whether revenue from the LATF could only be spent on acquisition
and then maintenance of new resources. As discussed above, we
hold that the trial court so ruling was error.
Because we must overturn the trial court’s unsupportable
reading of Article X, section 28, the trial court’s declaration that
multiple appropriations are unconstitutional must necessarily be
overturned as well as the declaration was premised on the trial
court’s view of the amendment. Also, the trial court’s order that
agencies must provide an accounting of its use of LATF revenue is
reversed as well as such an order was premised on an erroneous
reading of the amendment.
Finally, we find no error in the trial court’s denial of the
Appellants’ motions to disqualify and affirm as to that issue. The
grounds raised in the motion for disqualification pertain to the
scope and nature of the adverse ruling on FDE’s motion for
summary judgment. An adverse ruling is not a legally sufficient
ground for disqualification. See Thompson v. State, 759 So. 2d 650(Fla. 2000).
By our ruling we do not speak to the legality of the
appropriations since enactment of Article X, section 28, a question
which remains pending. We hold only that LATF revenue is not
restricted to use on land purchased by the State after 2015.
Accordingly, the final summary is reversed, and the cause is
remanded to the circuit court for further proceedings.
AFFIRMED in part, REVERSED in part, and REMANDED.
LEWIS and MAKAR, JJ., concur.
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_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Andy Bardos and James Timothy Moore, Jr., of GrayRobinson,
P.A., George N. Meros, Jr., of Holland & Knight LLP, Jeremiah
Hawkes, General Counsel, and Ashley Istler, Deputy General
Counsel, The Florida Senate, and Adam S. Tanenbaum, General
Counsel, The Florida House of Representatives, Tallahassee, for
Appellants The Legislative Parties.
Justin G. Wolfe, General Counsel, Jeffrey Brown and Kelley
Corbari, Office of General Counsel, State of Florida Department of
Environmental Protection and Fish and Wildlife Conservation
Commission, Joan T. Matthews, Office of General Counsel,
Department of Agriculture and Consumer Services, and Bradley R.
McVay, Interim General Counsel, and Ashley E. Davis, Deputy
General Counsel, Department of State, Tallahassee, for Appellants
the Florida Department of Environmental Protection, the
Department of Agriculture and Consumer Services, the Fish and
Wildlife Commission, and the Department of State.
Nicholas A. Primrose and James William Uthmeier, Office of
Governor Ron DeSantis, Tallahassee, for Appellants State of
Florida, Department of Environmental Protection and the State of
Florida, Department of State.
Alisa Coe and Bradley Marshall, Earthjustice, David Guest, and
Robert T. Benton, II, Tallahassee; Kenneth B. Wright,
Jacksonville, for Appellees Florida Wildlife Federation, et al.
Joseph W. Little, Gainesville, for Appellees Florida Defenders of
the Environment, Inc., et al.
Mohammad O. Jazil and Adam F. Blalock of Hopping Green &
Sams, P.A., Tallahassee, for Amici Curiae the Florida League of
Cities, the Florida Water Environment Association Utility Council,
12
the Florida Rural Water Association, and the Florida Stormwater
Association.
James W. Sherman, West Palm Beach, for Amicus Curiae South
Florida Water Management District.
Hala Sandridge of Buchanan Ingersoll & Rooney PC, Tampa, for
Amicus Curiae Florida Shore & Beach Preservation Association.
Jon L. Mills of Boies Schiller Flexner LLP, Miami, and Clay
Henderson, DeLand, for Amicus Curiae Florida Conservation
Voters, Inc., The Trust for Public Land, The Everglades
Foundation, Inc., and Florida Audubon Society, Inc.
John R. Thomas, St. Petersburg, for Amicus Curiae Florida
Springs Council, Inc.
Paul J. Schwiep of Coffey Burlington, P.L., Miami, for Amicus
Curiae Friends of the Everglades, Inc.
13