Quasi-Judicial Proceedings and Constitutionl Rights: What Is Happening to Separation of Powers?
The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.1
The above-quoted portion of the 1968 Constitution of the State of Florida (Constitution) is commonly referred to as the “separation of powers” doctrine. Florida’s Constitution, unlike the U.S. Constitution, expressly and strongly states the separation doctrine.2 The separation of powers provision was not new to the 1968 Constitution. The Florida Constitutions of 1885, 1868, and 1838 contained substantially similar statements.
This article will examine a recent Florida Supreme Court decision which appears to erode the concept of separation of powers. In Department of Agriculture & Consumer Services v. Bonanno, 568 So. 2d 24 (Fla. 1990), the court upheld a law which divested the Florida circuit courts of jurisdiction to determine full compensation in certain inverse condemnation cases. Overseeing protection of constitutional rights has historically been the function of the “courts” as that term is used in Art. V, §1 of the Constitution.3 In Bonanno, however, the court ruled that determination of full compensation in a takings case may be performed by an administrative “quasi-judicial” entity. Such a ruling signals that it may be time to reinforce the concept of separation of powers.
The Role of the Judiciary
It falls to the judiciary to maintain the system of checks and balances in our government. The roles of the legislative and executive branches must be kept from infringing on each other and the judicial branch. In Florida cases dealing with separation of powers questions, there is a constant awareness of the precarious balance of power and the ease with which it can be skewed:
If the Judicial Department of the Government can take over the Legislative powers, there is no reason why it cannot also take over the Executive powers. . . . The tendency to reach out and grasp for power in the sphere of governmental activity; for one branch of government to encroach upon, or absorb, the powers of another, is the means by which free governments are destroyed. . . . It is the duty of the Judicial Department, more than any other, to maintain and preserve those provisions of the organic law for the separation of the three great departments of Government.4
Hence, the judiciary’s role in government must be kept separate from the other branches. Despite this strong language, however, the separation of powers is not absolute. Some powers, such as the power to protect children, are shared by more than one branch.5 Case law in Florida is clear, however, that functions or duties of one branch which are “exclusively,” “fundamentally,” or “purely” imbedded in that branch may not be shared by two or more branches.6
Which governmental functions in Florida are “exclusively,” “fundamentally,” or “purely” judicial and which are not is to an extent a matter of interpretation: “The exclusive powers of the three branches of government are generally not delineated in the Constitution or in statutes. These powers are determined by considering the language and intent of the Constitution as well as the history, nature, powers, limitations, and purposes of our form of government.”7
There should be no debate, though, about what are “fundamentally” judicial functions versus quasi-judicial functions in cases which involve constitutional rights. The Constitution guarantees every person access to “courts” for redress of “any injury.”8 If this guarantee applies to anything, it should apply to injuries involving constitutional rights.
Full compensation for a taking of property by the government is a constitutional right under the Florida and U.S. Constitutions.9 The power to determine compensation due for a taking has long been considered a fundamentally judicial function. As stated in Daniels v. State Road Department, 170 So. 2d 846, 851 (Fla. 1964): “It is well settled that. . . what is just compensation. . . ‘is a judicial function that cannot be performed by the Legislature either directly or by any method of indirection.’ ”10
The law at issue in Department of Agriculture and Consumer Services v. Bonanno was Chapter 89-91 of the Laws of Florida, which required parties who had healthy citrus plants destroyed by the State of Florida to prevent the spread of citrus canker to litigate their claims for full compensation before the Division of Administrative Hearings. Circuit Judge Robert Bonanno, before whom several such cases were pending, denied the state’s motion to dismiss the cases and issued an order finding Ch. 89-91 unconstitutional. The state sought a writ of prohibition to prevent Judge Bonanno from exercising jurisdiction over the cases.
The Florida Supreme Court, in a four to three decision, granted the writ. The majority wrote that setting “just compensation” is a judicial function, but that quasi-judicial bodies may perform that task.11 The court held that nonjudges could be authorized to perform judicial functions in some circumstances. An administrative body could legally determine compensation without being a “court” as defined in Art. V of the Constitution, so there was no violation of the separation of powers doctrine.12 Since there was no right to trial at common law for a case involving a taking, the right to trial by jury in the Constitution did not apply.13 The majority also ruled that access to courts was not denied because the hearing officers’ decisions could be reviewed on appeal by a district court of appeal.14
The majority in Bonanno relied in part on Scholastic Systems, Inc. v. LeLoup, 307 So. 2d 166 (Fla. 1975), in support of the notion that noncourts can perform judicial functions. In LeLoup, the Florida Supreme Court decided that appeals from workers’ compensation cases, conducted before administrative “judges” of industrial claims, were not required to be heard by an Art. V appellate court to satisfy the constitutional requirement of appellate judicial review of administrative action. The court reasoned: “A body may be a ‘court’ without being named within the constitutional article dealing with the judiciary (in the case of our state constitution, Art. V), so long as it fulfills the requirements making it a judicial body of review.”15 The court went on to explain that the Industrial Relations Commission, a part of the Department of Commerce, was a “judicial tribunal performing the functions of a court for purposes of the ‘due process’ provisions of the constitution. . . . ”16 Further, it was the clear legislative intent that the commission be elevated to the status of a “judicial body.”17 The court held that the commission could not be a “court” for purposes of Art. V of the Florida Constitution, though, because the Constitution prohibits the legislature from creating new courts.18
The Bonanno dissenting justices took extreme umbrage with the notion that a judicial function could be performed by a quasi-judicial body. Since the Constitution guarantees just compensation, the issue, to the dissenters, was “one of constitutional dimension.”19 The minority compared determination of just compensation to “a determination of whether due process has been accorded a litigant.”20 Further, the majority’s citation of LeLoup and comparison of quasi-judicial determination of workers’ compensation, not constitutionally mandated, with full compensation following a taking, was “specious reasoning, at best.”21 The dissenters closed by stating: “With all due deference and respect to the majority, its opinion makes a mockery of the separation of powers provision of our state constitution.”22
The strong language of the Bonanno dissent was perhaps not strong enough. The idea behind the separation of powers is to keep one branch of government from becoming preeminent and taking control of the others. In the area of governmental takings of property, it had always been the judiciary’s responsibility to determine just compensation as a body independent of the government entity which effected the taking. The law made by Bonanno raises troubling thoughts about future takings procedures. One only has to imagine a local government hearing officer appointed by a local government to determine just compensation for property taken by the local government in a hearing in which the rules of procedure are set by the local government to understand the potential problem the Bonanno decision created.
The Bonanno majority believed that judicial appellate review of an administrative hearing involving just compensation would ensure that the constitutional rights of due process and access to courts would not be abridged. Consider, however, that the legislature and the executive branches determine the rules of procedure, evidentiary presumptions and discretionary applications, and the scope of appellate review in administrative hearings.23 In other words, due process in administrative hearings is what those branches say it is, and access to courts, although perhaps available, may be narrowly constricted. Indeed, by relying on the LeLoup case, the Bonanno majority implied that “judicial appellate review” of a takings case could legally be performed by an administrative agency, as well.
A quasi-judicial body is an entity which acts judicially but is not a court as set forth in the Constitution.24 The Constitution states: “Commissions established by law, or administrative officers or bodies may be granted quasi-judicial power in matters connected with the functions of their offices.”25 Hearings before administrative law judges pursuant to F.S. Ch. 120 are the most common quasi-judicial procedures. Typically, these hearings involve a state agency having taken action pursuant to statute or administrative rule which affects someone’s substantial interests, such as denying a permit application. In addition, cases involving certain statutory rights are also resolved in administrative forums.26 Thus, the Constitution authorizes nonjudicial bodies to behave judicially in certain cases involving agency “functions.”
Based on the separation of powers doctrine, Florida courts have limited the scope of what may be determined “quasi-judicially.” For example, administrative hearings cannot determine the facial constitutionality of statutes or adopted administrative rules.27 Administrative agencies cannot adjudicate their own contract disputes.28 Nor do agencies have the authority to award equitable relief.29
Absent consent of the parties, damages for some types of statutory injuries cannot be determined in an administrative hearing. Broward County v. La Rosa, 505 So. 2d 422, 423 (Fla. 1987), involved a challenge to a county ordinance which created an administrative agency which had authority to order payment of actual damages, including compensation for humiliation and embarrassment, suffered as a result of discriminatory practices by private employers. An employer challenged the ordinance as a violation of the separation of powers doctrine. The court explained that the ordinance infringed on a fundamental judicial function:
[A]lthough the legislature has the power to create administrative agencies with quasi-judicial powers, the legislature cannot authorize these agencies to exercise powers that are fundamentally judicial in nature.
. . . .
[W]e cannot imagine a more purely judicial function than a contested adjudicatory proceeding involving disputed facts that results in an award of unliquidated common law damages for personal injuries in the form of humiliation and embarrassment.
. . . .
[Even though] common law did not recognize civil rights. . . [c]ommon law undeniably recognized actions for unliquidated damage awards. When a tribunal with the power to make such awards for humiliation and embarrassment tries an accused, that accused has an inalienable right to a jury trial.30
Comparing what was held to be a fundamental judicial function in Broward County with what was held not to be in Bonanno is confusing. In Broward County, determining common law unliquidated damages for a violation of civil rights, a cause of action which did not exist at common law, was held to be a “purely judicial function.” Bonanno held that determining “just compensation,” by its very nature unliquidated, for a taking is not a fundamental judicial function, even though the right to just compensation exists in the Constitution and at common law, albeit without a right to a jury trial.31 The troubling aspect of these cases is that the court thought its direct oversight more important in cases arising under a county ordinance than in cases involving a right imbedded in the Constitution.
The courts have been divided on similar issues in the past. Consider that today we take for granted that the judicial branch is solely responsible for practice and procedure in Florida’s state courts. Until 1956, however, it was not clear that the Supreme Court of Florida had exclusive jurisdiction to create rules of practice and procedure for the state courts. Up to that time, the question of whether the statutory pronouncements of the legislature or rules of the Supreme Court of Florida were to control court procedures was wide open, with decisions going both ways.32 A constitutional amendment settled the issue.33 Perhaps the same solution is required in this situation.
The separation of what are fundamentally judicial functions from what may be quasi-judicial functions is sometimes difficult. To be sure, the legislature has had good reason to remove all or part of some conflicts from the Art. V courts and reduce the burden on our court system so that justice can be administered without delay in the cases which belong in the courts. The question which remains is: What is the legislature precluded from removing from the courts? Again, it appears that the while setting of full compensation in takings cases at one time was considered by the judiciary to be off limits to the legislature, this is no longer the case.34 Are other constitutional rights similarly fated?
There are several options for constitutional revision to ensure preserving separation of powers on the issue of which branch of government ultimately determines constitutional rights. First, the Constitution could be amended to define or limit what is meant by the grant of quasi-judicial powers to agencies in “matters connected with the functions of their offices” in Art. V, §1, as in: “Matters connected with agency functions shall be limited to those matters which the agency is statutorily or constitutionally authorized to regulate.” Alternatively, the separation of powers provision could be amended to state that matters involving a private party’s constitutional rights must be resolved in judicial forums.35 Whatever is done, Florida must preserve access to its “courts” for resolution of constitutional matters in order to maintain separation of its powers.q
1 Fla. Const. art. II, §3.
2 See Department of Agriculture & Consumer Services v. Bonanno, 568 So. 2d 24, 32 (Fla. 1990) (Justice Ehrlich dissenting).
3 “The judicial power shall be vested in a supreme court, district courts of appeal, circuit courts and county courts. No other courts may be established by the state, any political subdivision or any municipality.”
4 Pepper v. Pepper, 66 So. 2d 280, 284 (Fla. 1953).
5 Simms v. State of Florida Department of Health and Rehabilitative Services, 641 So. 2d 957, 960 (Fla. 3d D.C.A. 1994).
6 Simms, 641 So. 2d at 960 (“exclusively”); Broward County v. La Rosa, 505 So. 2d 422, 423 (Fla. 1987) (“fundamentally”) (“purely”).
7 Simms, 641 So. 2d at 960-61 (citations omitted).
8 Fla. Const. art. I, §21. Note that the Constitution also guarantees a right to a jury trial in Art. I, §22. The right of access to courts and the right to a jury trial guarantee different rights. For example, just because there is no right to a jury trial in a particular instance does not necessarily mean that there is no right of access to courts.
9 Fla. Const. art. X, §6; U.S. Const. amend. V.
10 See also Spafford v. Brevard County, 92 Fla. 617, 110 So. 451 (1926); Hillsborough County v. Kensett, 107 Fla. 237, 144 So. 393 (1932); State Plant Board v. Smith, 110 So. 2d 401 (Fla. 1959); Behm v. Dept. of Transportation, 383 So. 2d 216 (Fla. 1980); State ex rel. State Road Dept. Wingfield, 101 So. 2d 184 (Fla. 1st D.C.A. 1958).
11 Bonanno, 568 So. 2d at 28.
12 Id. at 29.
13 Id. at 28.
14 Id. at 30.
15 LeLoup, 307 So. 2d at 169.
16 Id. at 170.
17 Id. at 171.
18 The LeLoup court’s reasoning makes one wonder what the legislature would have to do to violate the prohibition against creation of new “courts.”
19 Bonanno, 568 So. 2d at 33.
21 Id. at 34.
22 Id. at 35.
23 See Fla. Stat. §120.68 and Fla. Admin. Code ch. 28, “Uniform Rules of Procedure.” Note that Fla. Laws ch. 89-91 set presumed values of destroyed citrus plants which claimants would have to overcome to be entitled to more, and also capped attorneys’ fees.
24 See note 3, supra.
25 Fla. Const. art. V, §1 (emphasis added).
26 See Fla. Stat. ch. 440 (Workers’ Compensation) and §§766.301-766.316 (Florida Birth-Related Neurological Injury Compensation Plan).
27 Department of Revenue v. Young American Builders, 330 So. 2d 864 (Fla. 1st D.C.A. 1976) (facial constitutionality of a statute may not be decided in an administrative proceeding); Department of Revenue v. Magazine Publishers of America, Inc., 604 So. 2d 459, 462 (Fla. 1992) (“Division of Administrative Hearings does not have jurisdiction to dispose of constitutional issues in a section 120.56 proceeding.”); see also Key Haven Associated Enterprises, Inc. v. Board of Trustees of Internal Imp. Trust Fund, 427 So. 2d 153, 156-57 (Fla. 1982). Key Haven discusses three types of constitutional challenges which may be raised in the context of the administrative decision-making process of an executive agency. Takings cases are not one of these. In addition, Key Haven contemplates judicial restraint with respect to administrative remedies, not deprivation of jurisdiction: “We have expressly recognized that circuit courts have the power, in all circumstances, to consider constitutional issues. . . . Clearly, the determination of whether a particular controversy may be taken out of the administrative process and into a circuit court is a question of judicial policy and not a matter of judicial jurisdiction.” (citations omitted) (emphasis added).
28 State Road Dept. v. Cone Bros. Contracting Co., 207 So. 2d 489, 491 (Fla. 1st D.C.A. 1968) (“[Contract] disputes such as these are traditionally settled in the courts of this State by adversary proceedings in which the agency as a contracting party is treated as any other citizen.”).
29 Biltmore Construction Company v. Florida Department of General Services, 363 So. 2d 851, 854 (Fla. 1st D.C.A. 1978) (Power to award equitable relief, such as specific performance, is “fundamentally judicial” and may not be exercised by administrative quasi-judicial body.). See also Fla. Stat. §120.69.
30 Broward County, 505 So. 2d at 423-24. The same court went on to state: “Admittedly, the boundary between judicial and quasi-judicial functions is often unclear. Nevertheless. . . we see a significant distinction between administrative awards of quantifiable damages for such items as back rent or back wages and awards for such nonquantifiable damages as pain and suffering or humiliation and embarrassment.” Id. at 423-24. This notion of nonliquidated damages being a fundamental judicial function appears to have been undercut by Fla. Stat. §766.31, which not only caps unliquidated damage awards for neurological injuries sustained at birth at $100,000, but also requires a quasi-judicial body to determine the awards.
31 Further, just compensation involves equity. See note 15, supra, and Orange State Oil Company v. Jacksonville Expressway Authority, 110 So. 2d 687, 690 (Fla. 1st D.C.A. 1959) (“Just compensation is determined by ‘equitable principles,’ and its measure varies with the facts.”). Bonanno appears to treat the destroyed citrus plants as fungible goods and assumes that there would be little variation in the “facts” of each compensation case. This assumption is comparable to assuming that all houses are worth the same amount per square foot for purposes of full compensation.
32 See Sydney v. Auburndale Construction, 119 So. 128, 129 (Fla. 1928) (“The Legislature has no power to prescribe rules regulating the conduct of the court’s business or other matters within the inherent power of the court to regulate.”); contra see In Re: Petition of Florida State Bar Association for Promulgation of New Florida Rules of Civil Procedure, 145 Fla. 223, 227-28,199 So. 57 (Fla. 1940) (“As the law on the point now stands, the Legislature may prescribe rules of practice and this Court may prescribe such rules not inconsistent with those passed by the Legislature. . . . The fact of one department being clothed with inherent power does not necessarily mean that all others are excluded.”).
33 See Fla. Const. of 1885 art. V, §3.
34 See Daniels v. State Road Department, 170 So. 2d 846 (Fla. 1964), and note 10, supra.
35 An amendment requiring all takings cases to be fully resolved in the court system would restore an owner’s right to a judicial forum but would have to be carefully worded to avoid opening the door to quasi-judicial resolution of other constitutional issues under the maxim inclusio unius est exclusio alterius.
Robert C. Downie II practices in Tallahassee. He received his J.D. from the Florida State University College of Law in 1989 and his A.B. from Davidson College in 1987. His practice concentrates on administrative and commercial litigation. The author expresses his appreciation for assistance with this article to David K. Miller of Broad & Cassel in Tallahassee.
This article is submitted on behalf of the General Practice Section, Timothy S. Shaw, chair, and David A. Donet, editor.