Mary Beth Jackson, etc. v. Ron DeSantis, Governor , 268 So. 3d 662 ( 2019 )

Supreme Court of Florida
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No. SC19-329
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MARY BETH JACKSON, etc.,
Petitioner,
vs.
RON DESANTIS, GOVERNOR,
Respondent.
April 16, 2019
PER CURIAM.
Article IV, section 7(a) of the Florida Constitution authorizes the governor
to suspend county officers on several enumerated grounds, including “neglect of
duty” and “incompetence.” On January 11, 2019, in Executive Order 19-13,
Governor Ron DeSantis invoked that authority and cited those grounds to suspend
Mary Beth Jackson, Superintendent of Schools for Okaloosa County. Jackson has
petitioned this Court for a writ of quo warranto, a remedy used to challenge a state
officer’s exercise of power derived from the State. We have jurisdiction, see art.
V, § 3(b)(8), Fla. Const., but we deny Jackson’s petition.
The gist of Jackson’s petition is that the Governor exceeded his suspension
authority by relying “exclusively” on conduct alleged to have occurred during
Jackson’s prior term in office. Jackson was first elected for a term beginning on
November 20, 2012, and the voters subsequently reelected her to an additional
four-year term beginning on November 22, 2016. Jackson claims that the
misconduct alleged in Executive Order 19-13 is limited to acts that occurred no
later than the 2015-2016 school year, which ended months before the beginning of
Jackson’s current term of office.
Our review of Executive Order 19-13 leads us to conclude that Jackson’s
petition is based on a faulty premise. Read fairly and in its entirety, the suspension
order alleges acts and omissions occurring during Jackson’s current term and bases
Jackson’s suspension on her alleged ongoing mismanagement of the school
district. Specifically, the suspension order relies in part on Okaloosa County
Grand Jury Reports dated February 20, 2018, and June 13, 2018—well into
Jackson’s current term of office. The suspension order explains that those grand
jury reports faulted Jackson’s longer-term response to allegations made during the
2015-2016 school year about a teacher’s abuse of special needs students.
According to the suspension order, the grand jury found systemic failures in
Jackson’s training and supervision of personnel, “especially in the areas of ethics,
child abuse, and mandatory reporting obligations.” The text of the suspension
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order leaves no doubt that, in the Governor’s view, those failures continued up to
the time of Jackson’s suspension in January 2019: “Superintendent Jackson has
failed in her responsibilities and duties . . . due to her failure to provide adequate,
necessary, and frequent training, a lack of supervision of school district personnel,
and a failure to implement adequate safe-guards, policies, and reporting
requirements to protect the safety and well-being of the students.”
Because Executive Order 19-13 alleges misconduct occurring in Jackson’s
current term, there is no need for us to address the constitutional validity of a
hypothetical suspension order alleging facts that relate exclusively to a suspended
official’s earlier term in office. To the extent that prior cases of this Court have
addressed that issue, we take no position on those cases here. Nor do we express
any views on the scope of evidence that the Senate may consider in any proceeding
relating to Jackson’s suspension.
We remain mindful of our limited role in reviewing the exercise of the
suspension power, which the Constitution commits to the governor and which
inherently involves “judgment and discretion.” State ex rel. Hardie v. Coleman,
155 So. 129, 133 (Fla. 1933). If a suspension order “names one or more of the
grounds embraced in the Constitution and clothes or supports it with alleged facts
sufficient to constitute the grounds or cause for suspension, it is sufficient.” Id.Executive Order 19-13 satisfies that standard.
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Accordingly, the petition for writ of quo warranto is hereby denied.
It is so ordered.
CANADY, C.J., and POLSTON, LABARGA, LAWSON, LUCK, and MUÑIZ,
JJ., concur.
LAGOA, J., concurs in result only with an opinion.
ANY MOTION FOR REHEARING OR CLARIFICATION MUST BE FILED
WITHIN THREE DAYS. A RESPONSE TO THE MOTION FOR
REHEARING/CLARIFICATION MAY BE FILED WITHIN TWO DAYS
AFTER THE FILING OF THE MOTION FOR REHEARING/CLARIFICATION.
NOT FINAL UNTIL THIS TIME PERIOD EXPIRES TO FILE A
REHEARING/CLARIFICATION MOTION AND, IF FILED, DETERMINED.
LAGOA, J., concurring in result only.
I concur in denying Jackson’s petition, but I reach this conclusion based on
the text of article IV, section 7 of the Florida Constitution. Article IV, section 7 of
the Constitution does not impose a temporal limitation on the executive’s
suspension power such that the constitutionally enumerated grounds resulting in
suspension must occur during the suspended officer’s current term of office.
Article IV, section 7(a) of the Florida Constitution provides:
By executive order stating the grounds and filed with the custodian of
state records, the governor may suspend from office any state officer
not subject to impeachment, any officer of the militia not in the active
service of the United States, or any county officer, for malfeasance,
misfeasance, neglect of duty, drunkenness, incompetence, permanent
inability to perform official duties, or commission of a felony, and
may fill the office by appointment for the period of suspension. The
suspended officer may at any time before removal be reinstated by the
governor.
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After the Governor executes the order of suspension, the Florida Senate “may, in
proceedings prescribed by law, remove from office or reinstate the suspended
official.” Art. IV, § 7(b), Fla. Const. Where the language of the Constitution “is
clear, unambiguous, and addresses the matter in issue, then it must be enforced as
written,” as the “constitutional language must be allowed to ‘speak for itself.’”
Fla. Soc’y of Ophthalmology v. Fla. Optometric Ass’n, 489 So. 2d 1118, 1119 (Fla.
1986).
Article IV, section 7 of the Constitution provides a full and complete method
for the suspension and removal of certain categories of officers. Article IV, section
7(a) expressly and unambiguously vests the Governor with the power to suspend.
The only constitutional requirements imposed on the Governor are that (1) the
officer be a member of one of the three identified categories (a state officer not
subject to impeachment, an officer of the militia not in the active service of the
United States, or a county officer), (2) the suspension be for one of the
constitutionally enumerated grounds (malfeasance, misfeasance, neglect of duty,
drunkenness, incompetence, permanent inability to perform official duties, or
commission of a felony), and (3) the Governor file an executive order of
suspension stating those grounds with the “custodian of state records,” i.e., the
Secretary of State. Article IV, section 7(b) expressly and unambiguously vests the
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Senate with the power to remove or reinstate the officer through “proceedings
prescribed by law.”
As previously noted by this Court, the Governor’s suspension power is
“executive” and “so long as the Governor acts within his jurisdiction as charged by
organic law, [i.e., the Constitution,] his action may not be reviewed by the courts.”
State ex rel. Hardie v. Coleman, 155 So. 129, 133 (Fla. 1933). Similarly, the
Senate’s judgment of removal or reinstatement “is final, and will not be reviewed
by the courts,” as under the constitutional process for suspension and removal, the
“Senate is nothing less than a court provided to examine into and determine
whether or not the Governor exercises the power of suspension in keeping with the
constitutional mandate.” Id. at 134. Assuming that the suspended officer falls into
one of the constitutionally enumerated categories and that the Governor has filed
the executive order of suspension with the custodian of records, the plain language
of the Constitution excludes the judiciary from involving itself in the suspension
and removal process save for a limited exception.
Turning to that exception, the Constitution requires the Governor to issue an
executive order of suspension “stating the grounds” of suspension. While a
suspended officer may ask the courts to examine an executive order of suspension
to ensure that the order satisfies that constitutional requirement, the judiciary’s role
is limited to determining whether the executive order, on its face, sets forth
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allegations of fact relating to one of the constitutionally enumerated grounds of
suspension. Id. at 133. Therefore, “[a] mere arbitrary or blank order of suspension
without supporting allegations of fact, even though it named one or more of the
constitutional grounds of suspension, would not meet the requirements of the
Constitution,” id., but where the executive order of suspension contains factual
allegations relating to an enumerated ground for suspension, the Constitution
prohibits the courts from examining or determining the sufficiency of the evidence
supporting those facts, as the “matter of reviewing the charges and the evidence to
support them is solely in the discretion of the Senate,” id. at 134; see also State ex
rel. Kelly v. Sullivan, 52 So. 2d 422, 425 (1951) (“It is the function of the Senate,
and never that of the Courts, to review the evidence upon which the Governor
suspends an officer in the event the Governor recommends his removal from
office.”).1 As a result, the factual allegations in an executive order of suspension
must pass only a low threshold to satisfy the judiciary’s limited, facial review, and
1. Hardie and Kelly both involved article IV, section 15 of the 1885 Florida
Constitution, which is the predecessor to article IV, section 7 of the current
Constitution. Like the current Constitution, the 1885 Constitution reserved to the
Governor the suspension power. Regarding the removal power, however, the 1885
Constitution provided that “the Governor, by and with the consent of the Senate,
may remove any officer, not liable to impeachment, for any cause above named.”
Thus, under the 1885 Constitution, “removals [were] accomplished by the joint
action of the Governor and the Senate.” Hardie, 155 So. at 130. Because the 1968
Constitution vests the removal power exclusively with the Senate, our prior
descriptions of the Senate’s role as the sole arbiter of the evidence supporting the
Governor’s exercise of his suspension power apply with even greater emphasis.
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“if, on the whole, [the executive order] contains allegations that bear some
reasonable relation to the charge made against the officer, it will be adjudged as
sufficient.” Hardie, 155 So. at 133.
Under this standard, Executive Order 19-13 satisfies the requirements of
article IV, section 7(a). Reviewing the four corners of the Executive Order, the
Governor suspended Jackson, a county officer, on the constitutionally enumerated
grounds of “neglect of duty” and “incompetence.” The Executive Order supports
those two grounds with various factual allegations against Jackson that, on their
face, reasonably relate to the charges of neglect of duty and incompetence made
against Jackson. Whether there is any merit to the grounds listed in Executive
Order 19-13 for Jackson’s suspension from office is a determination to be made
exclusively by the Florida Senate under the Constitution.
Ordinarily, this would end the judicial inquiry. Jackson, however, contends
that article IV, section 7(a) limits the Governor’s suspension power to acts
occurring during the officer’s current term of office.
In considering Jackson’s argument, the analysis again begins with the text of
the Constitution, for it is the constitutional language that delineates the executive
power to suspend. As discussed above, article IV, section 7(a) of the Constitution
imposes only three requirements on the Governor’s exercise of the suspension
power: (1) the officer suspended must fall into one of the constitutionally
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enumerated categories; (2) the suspension must be based on one of the
constitutionally enumerated grounds for suspension; and (3) the Governor must file
an executive order of suspension stating those grounds with the custodian of state
records. Significantly, article IV, section 7(a) does not state that the enumerated
grounds resulting in suspension must occur within the officer’s current term.
In support of her position that article IV, section 7(a) limits the Governor’s
suspension power to acts that occur within the suspended officer’s current term,
Jackson relies on this Court’s advisory opinion to Governor Gilchrist in In re
Advisory Opinion to Governor, 60 So. 337 (Fla. 1912) (“1912 Advisory
Opinion”). 2 In the 1912 Advisory Opinion, this Court provided Governor Gilchrist
2. Jackson also relies upon this Court’s decision in State ex rel. Turner v.
Earle, 295 So. 2d 609 (Fla. 1974). Turner held that the Judicial Qualifications
Commission (“JQC”) could not discipline a circuit court judge for misconduct
alleged to have occurred while that judge held another judicial office outside of the
JQC’s constitutional jurisdiction. The Court additionally noted that a jury had
already acquitted the judge of the alleged felony that was to be the subject of the
JQC’s purported inquiry. See id. at 619. Relying on the 1912 Advisory Opinion,
this Court stated that “a public officer may not be removed from office for
misconduct which he committed in another public office or in a prior term of office
. . . .” Id. at 613. The Court in Turner expressly cautioned that “[a]ll dictum in this
opinion must be read in the context of the circumscribed facts and not considered a
precedent in cases involving different facts,” id. at 619, and we have rejected the
application of Turner in situations involving different facts, see Fla. Bar v.
McCain, 361 So. 2d 700, 704 (Fla. 1978).
The facts at issue in the instant petition are materially different from those at
issue in Turner, and applying Turner here would run afoul of our earlier warning
regarding its limited application. Moreover, Jackson’s petition concerns the
Governor’s power to suspend under article IV, section 7, not the JQC’s jurisdiction
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with an advisory opinion that article IV, section 15 of the 1885 Florida
Constitution (the predecessor to article IV, section 7 of the 1968 Florida
Constitution) did not authorize the Governor to suspend a county officer for an act
of malfeasance or misfeasance committed by him prior to the date of the beginning
of his current term in office. Relying on an earlier advisory opinion, In re Advisory
Opinion to the Governor, 12 So. 114 (Fla. 1893) (“1893 Advisory Opinion”), the
1912 Advisory Opinion noted that the “power . . . given the Governor to suspend
the incumbent of an office and to fill the office by appointment is necessarily
confined to the current term of the office.” 60 So. at 337. From the 1893 Advisory
Opinion’s conclusion that an appointment is limited to the remainder of the
suspended official’s term, the 1912 Advisory Opinion concluded that “the
Constitution contemplates that the causes for suspension from office shall arise
from the conduct of the officer during the term for which the officer is then in
commission.” 60 So. at 337-38.
This statement, however, does not follow from a natural reading of the
constitutional text, as neither article IV, section 7(a) of the Constitution nor its
to discipline under article V, section 12 of the Florida Constitution. As discussed
below, the 1912 Advisory Opinion, which Turner relies on, is unsupported by the
plain language of article IV, section 7, and importing Turner into our analysis of
article IV, section 7 would be contrary to our long-established precedent that the
cornerstone of constitutional interpretation begins with the “examination of that
provision’s explicit language.” Fla. Soc’y of Ophthalmology, 489 So. 2d at 1119.
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predecessor (article IV, section 15 of the 1885 Constitution) states that only acts
occurring within the officer’s current term can form the basis for a suspension. As
there is nothing in the constitutional text relating to any temporal limitation on the
Governor’s power to suspend, it is impossible to say that the Constitution
“contemplates” an additional requirement on the exercise of this constitutionally
authorized executive power.
While a gubernatorial appointment following a suspension lasts only for the
remainder of the suspended officer’s current term of office, it does not follow that
there is a constitutionally mandated correlation between the duration of an officer’s
suspension and the dates on which the acts giving rise to suspension occurred.
Indeed, it is not hard to imagine situations where an officer’s misconduct in a prior
term implicates his or her fitness to serve the remainder of his or her current term.
For example, an officer could have committed a felony or engaged in malfeasance
during a prior term of office that went undetected until after reelection to the
current term. It is not necessary to indulge in a series of hypotheticals to try to
parse which ones may or may not be subject to the exercise of the suspension
power, however, because nothing in the plain language of article IV, section 7(a)
prohibits the Governor from suspending an officer based on an enumerated act that
occurred prior to the officer’s current term. The Constitution then places the
responsibility on the Senate to determine whether removal or reinstatement is
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warranted based on those facts and the evidence presented at proceedings before
that body.
Because the 1912 Advisory Opinion is premised on unsound legal principles
with no support in the plain and unambiguous language of article IV, section 7(a)
of the Constitution, I would disapprove its statement that “the Constitution
contemplates that the causes for suspension from office shall arise from the
conduct of the officer during the term for which the officer is then in commission.”
The Constitution establishes a clear and unambiguous process for suspension
and removal. The Governor may suspend for one or more of the grounds
enumerated in article IV, section 7(a), and the Senate may remove or reinstate the
officer pursuant to article IV, section 7(b). The Constitution reserves to the Senate
the sole responsibility for reviewing the evidence supporting the Governor’s
executive order of suspension, and it is the constitutional role of the Senate to
consider whether the suspended officer merits removal or reinstatement.
Assuming the suspended officer falls within one of the constitutionally enumerated
categories and the Governor has filed the executive order of suspension with the
state custodian of records, the judiciary’s sole role in this process involves a facial
review of the executive order of suspension to determine whether it is merely a
blank order of suspension without supporting allegations of fact or whether it
contains allegations that bear some reasonable relation to the charge made against
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the officer. This is “due entirely to the fact that the Constitution itself has set up its
own special court to try the matter, namely the state Senate.” Hardie, 155 So. at
136 (Davis, C.J., concurring). Nothing in the constitutional text limits the
executive suspension power to acts occurring within the suspended officer’s
current term, and by imposing an additional requirement on the executive
suspension power not found in the text, the 1912 Advisory Opinion improperly
inserted the courts into a process that the Constitution leaves to the Governor and
the Senate.
For the reasons stated, I concur in denying Jackson’s petition for writ of quo
warranto.
Original Proceeding – Quo Warranto
George T. Levesque and D. Ty Jackson of GrayRobinson, P.A., Tallahassee,
Florida,
for Petitioner
Joe Jacquot, General Counsel, Nicholas A. Primrose, John MacIver, and Colleen
Ernst, Deputy General Counsel, Executive Office of the Governor, Tallahassee,
Florida,
for Respondent
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