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The Administrative Process and Constitutional Principles: Separation of Powers

Administrative Law

T he basic precept of separation of powers is that the power of the government is divided into three departments: legislative, executive, and judicial.1 N o department may exercise the powers of another. The legislature also is prohibited from delegating to administrative agencies its functions or the functions of other departments.2 T his division of power is designed to “minimize the threat of. . . tyranny” that arises when all the powers of the government are concentrated in the hands of only one body.3 F rom this basic structural concept, the courts have evolved a variety of doctrines that constrain the exercise of the state’s police powers.

Core Powers
Central to understanding the legal doctrines based on separation of powers is an appreciation for the type of power each branch exercises. Applied in a literal and formalistic fashion, the separation of powers would prohibit each branch of the government from exercising any of the powers of the others except as expressly provided in the Florida Constitution.4 Such a rigid formalistic approach generally is not practical, and one branch on occasion may exercise some aspect of the powers of the other branches. The classic example is the delegation of quasi-legislative authority to the executive branch so that it may promulgate rules to implement statutes. Such rulemaking is legislative in nature, but is permitted.5 There are, however, core functions that cannot be shared or delegated.

Executive Branch
The judicial or legislative branches may not interfere with or exercise discretionary executive functions solely within the Governor’s power under the Florida Constitution or statutes. These types of executive decisions generally are not subject to judicial review.6 This ensures that the courts do not interfere with political decisions of the executive branch.7

The Florida courts never have defined precisely the scope of constitutionally based discretionary executive authority.8 In various cases, however, the courts have held that discretionary executive authority includes the following: the Governor’s power to appoint and suspend public officials;9 the decision to veto a bill;10 executive budgetary decisions;11 the decision to charter a bank;12 the decision to investigate law violations;13 the decision to conduct inspections;14 the decision to grant a pardon;15 the decision to grant or deny a parole request;16 the decision to commute a sentence;17 the decision to grant or deny a clemency petition;18 the decision to prosecute crimes19 or seek the death penalty;20 the decision to pursue an appeal;21 the decision to carry out a capital punishment sentence.22

The only time constitutionally based discretionary executive functions clearly are subject to substantive judicial review is when they are attacked for violating a provision of the Florida or federal constitution.23 Florida courts have shown a distinct trend toward holding that very few executive decisions are discretionary, except those expressly given to the Governor under the Florida Constitution.

Most other executive decisions, once considered discretionary, now are governed by provisions of the APA or other statutes and are subject to judicial review. Such statutory constraints on the exercise of executive powers generally do not involve the invasion of the core discretionary functions of the executive branch.24 In McDonald v. Dept. of Banking & Finance, 346 So. 2d 569, 577 (Fla. 1st DCA 1977), the court noted that the APA only limited the exercise of statutory discretion by executive branch officers:

In three important respects. . . the APA affects the scope and manner of exercise of agency discretion: (1) the APA prescribes the process by which disputed facts are found; (2) it requires that the agency adopt as rules its policy statements of general applicability, requires agency proof of incipient policy not expressed in rules and permits countervailing evidence and argument; and (3) it requires an agency to explain the exercise of its discretion and subjects that explanation to judicial review.

The court found that these restrictions did not invade impermissibly the executive branch’s powers because the APA governs only the method by which the discretion may be exercised.25 Functionally, such constraints on the exercise of executive discretion have enhanced substantially the power of the courts to review executive decisions.26

The statutory requirements of the APA in most cases do not convert the executive decisionmaking process into a quasi-judicial proceeding.27 However, the decision in Board of County Commissioners of Brevard County v. Snyder, 627 So. 2d 469 (Fla. 1993), suggests these issues may be reexamined by the courts. In the context of the APA, however, this issue may not be confronted directly because the Governor is not subject to the APA when exercising constitutional powers.28

Executive Budgetary Powers and Invasion of Legislative Power
There has been substantial litigation over the scope of legislative and executive power in the budgetary area. In Chiles v. Children A, B, C, D, E, & F, 589 So. 2d 260 (Fla. 1991), the Florida Supreme Court reaffirmed basic separation of powers principles in discussing the constitutionality of the statutory system for maintaining a balanced budget when tax receipts have not kept pace with expenditures.29

Since the Chiles decision, courts actively have reviewed executive decisions to determine if they encroach on the powers of the legislative branch. The decision in Hillhaven Corp. v. Dept. of Health & Rehabilitative Services, 625 So. 2d 1299 (Fla. 1st DCA 1993), rev. den., 634 So. 2d 623, epitomizes these decisions. In Hillhaven, the validity of a Department of Health and Rehabilitative Services rule that eliminated semiannual adjustments in the per diem Medicaid rate for nursing homes from January 1, 1990, through June 30, 1990, was challenged. The rule was adopted in response to a budgetary shortfall during the 1989–90 fiscal year. No other explanation was offered for the adoption of the rule. The court found the rule invalid for two reasons. First, it had the effect of altering the legislative appropriation for this aspect of the Medicaid program, precisely what the decision in Chiles held unconstitutional. Second, the rule was an invalid exercise of delegated authority because it contravened the express statutory directions to the agency found in F.S. §409.266(1).

The issues concerning the division of authority over the budget have been clarified to some extent by the addition of Art. IV, §13 and Art. III, §19 to the Florida Constitution.

Lawmaking through the legislative process is the exclusive preroga-tive of the legislature.30 The legislature has the primary responsibility to shape public policy in Florida by the exercise of its lawmaking powers.31 As the court noted in State v. Atlantic Coast Line R. Co., 56 Fla. 617, 47 So. 969, 976 (1908), “[t]he Legislature may not delegate the power to enact a law, or to declare what the law shall be.” This power may not be exercised by another branch of government or administra-tive agencies.32

Although the legislature, within appropriate limitations discussed below, generally may delegate quasi-legislative power to administrative agencies, there are some areas in which no delegation is permitted. In various cases the courts have identified matters that cannot be entrusted to another branch or an administrative agency: the conduct of the impeachment process;33 initial appropriation decisions;34 reduction of appropriations;35 imposition of a tax;36 definition of a crime;37 creation of officers and other public positions;38 reapportionment of the legislature;39 qualification of members of the legislature;40 manner in which legislature allocates resources for public education;41

If a matter involves a core legislative power, that power must be exercised by the legislature or not at all.42

Conflict Between Legislative and Executive Authority
Even when a matter concerns an area traditionally within a core legislative power, conflicts still can arise with the power of other branches and individual rights. In Chiles v. United Faculty of Florida, 615 So. 2d 671 (Fla. 1993), the court examined limitations on the legislature’s budgetary power arising from the doctrine of separation of powers and other constitutional limitations. The issue was whether the legislature could eliminate pay raises for public employees negotiated through a collective bargaining agreement and funded by the legislature. The court held that the “legislature has authority to reduce previously approved appropriations to pay public workers’ salaries made pursuant to a collective bargaining agreement, but only where it can demonstrate a compelling state interest. . . [and] no other reasonable alternative means of preserving its contract with public workers, either in whole or in part” exists.43 The court noted that the separation of powers doctrine supports this result because it “does not allow the unilateral and unjustified legislative abrogation of a valid contract.”44 But see Justice Overton’s dissent (once Governor calls special legislative session to deal with revenue shortfall, all prior appropriations are subject to being voided by legislature’s exercise of its subsequent appropriation power); and Justice McDonald’s dissent (legislature has exclusive control over appropriation of public funds; revenue shortfall is emergency satisfying compelling state interest requirement under majority’s approach and any other result would permit large variety of contracts to limit legislature’s budgetary authority).

The United Faculty of Florida decision also raised the question of the relationship between the executive power to negotiate agreements and legislative control of the budget. Local governmental bodies and the legislature may still “trump” the agreement by failing to fund it because

[t]he legislative body has the absolute right and obligation under the constitution to fund or not fund any agreement entered into. . . [with its] employees.. . . Any other rule would permit the executive branch of government, by enter-ing into collective bargaining agreements calling for additional appropriations, to invade the legislative branch’s exclusive right to appropriate funds.45

The consti-tutionally guaranteed right to collective bargaining cannot restrict the power of appropriation.46

It is the duty of the courts to enforce the legislature’s policy choice when it is properly before them in a judicial proceeding.47 The role of ultimate inter-preter of the law may not be used by the courts to interfere with the legiti-mate exercise of power reserved by the Florida Constitution for other branches of the government.48 The most thoughtful comment on this problem was offered by Justice Kogan in his concurring opinion in Garden v. Frier, 602 So. 2d 1273 (Fla. 1992). He noted that when a statute is so ambiguous and vague that the courts have no clear guidance to its meaning, the courts violate the doctrine of separation of powers if they use the interpretative process to provide the necessary specificity to save the statute from being held unconstitutional. If the courts do so, they usurp the legislature’s power and obligation to declare clearly what the public policies are in the statutes. With very few exceptions, the task of developing public policy is reserved to the legislature. The courts are ill-equipped to assume it and should avoid using the interpretative process to accomplish such results.49

Some executive and legislative decisions are beyond the powers of the courts to review because they concern the core functions of those branches.50 In McPherson v. Flynn, 397 So. 2d 665,667 (Fla. 1981), the court noted that it would refrain from deciding any matter in a judicial forum that was “committed to a coordinate branch of government by the demonstrable text of the constitution.” Such decisions become subject to judicial review only when the legislature specifically has authorized it by statute.51

The courts have inherent power to do all things reasonably necessary for the administration of justice.52 Certain issues must be resolved in a judicial proceeding or are part of the inherent judicial power. Examples include the following:

1) Submission of a budget for the judiciary to the legislature.53

2) Regulation of the legal profession.54

3) Establishment of rules of practice and procedure for the courts.55

4) Control of the judiciary-related duties of the clerk or deputy clerk.56

5) Contempt power.57

6) Sentencing in a criminal case.58

7) Determination of restitution in a criminal case.59

8) Determination of programs a juvenile delinquent should enroll in for rehabilitation.60

9) Awarding of common-law-based monetary damages.61

10) Interpretation of a contract between two private parties.62

11) Constitutionality of a state statute.63

12) Constitutionality of an administrative rule.64

13) Access to court records.65

14) Waiver of immunity for judicial and quasi-judicial officers.66

The other branches of the government may not interfere with the courts in the performance of their duties.67 The legislature, however, may pass statutes that relate to the core functions of the judiciary without impermissibly invading them.68

The legislature may not prescribe court procedure by statute, because control over court proce-dure is vested in the judiciary.69 However, when rules of procedure govern quasi-judicial bodies they must be based on a delegation of authority from the legislature, because the constitutional power of the Florida Supreme Court over procedure is limited to Article V courts.70 The courts, however, will interpret a statute to avoid holding it unconsti-tutional on this ground, if possible.71 In some cases the court avoids this constitutional problem by accommodating the statutory policy in an amendment to the applicable rule of procedure.72 q

1 Fla. Const. art. II, §3.
2 See Chiles v. Children A, B, C, D, E, & F, 589 So. 2d 260 (Fla. 1991); D.P. v. State, 597 So. 2d 952 (Fla. 1st D.C.A. 1992), overruled on other grounds 645 So. 2d 987. See also Coalition for Adequacy & Fairness in School Funding v. Chiles, 680 So. 2d 400 (Fla. 1996).
3 Burris, Administrative Law, 1987 Survey of Florida Law, 12 Nova L. Rev. 299, 302 (1988). See Locke v. Hawkes, 595 So. 2d 32, 36 (Fla. 1992) (“the control or influence by one branch of another branch’s internal operating procedures could interfere with the independence of the second branch and possibly place the enforcing branch in a superior position”); Chiles v. Children, A, B, C, D, E, & F, 589 So. 2d 260 (Fla. 1991).
4 Immigration & Naturalization Service v. Chadha, 462 U.S. 919 (1983); Chiles v. Children A, B, C, D, E, & F, 589 So. 2d 260 (Fla. 1991).
5 See Askew v. Cross Key Waterways, 372 So. 2d 913 (Fla. 1979). But see Board of County Commissioners of Brevard County v. Snyder, 627 So. 2d 469 (Fla. 1993) (analyzing nature of powers exercised in zoning area).
6 Nelson v. Lindsey, 151 Fla. 596, 10 So. 2d 131 (1942).
7 See Trianon Park Condominium Association, Inc. v. City of Hialeah, 468 So. 2d 912 (Fla. 1985); Webb v. Hill, 75 So. 2d 596 (Fla. 1954). See also Heckler, Secretary of Health & Human Services v. Chaney, 470 U.S. 821 (1985); Carter v. City of Stuart, 468 So. 2d 955 (Fla. 1985).
8 See Florida Motor Lines, Inc. v. Railroad Commissioners, 100 Fla. 538, 129 So. 876 (1930).
9 Schneider v. Sweetland, 214 So. 2d 338 (Fla. 1968); Bruner v. State Commission on Ethics, 384 So. 2d 1339 (Fla. 1st D.C.A. 1980). See Jones v. Chiles, 638 So. 2d 48 (Fla. 1994) (Fla. Stat. §440.45, limiting Governor’s power to reappoint judges of compensation claims, unconstitutional on separation of powers grounds); Wright v. Florida Medical Examiners Commission, 625 So. 2d 846 (Fla. 1993) (legislature may not establish system reducing Governor’s appointment process to ministerial act, because nominating body functionally would be exercising Governor’s appointment power); Fla. Const. art. III, §14; art. IV, §1(f); art. IV, §6.
10 Thompson v. Graham, 481 So. 2d 1212 (Fla. 1986) (Governor cannot use veto power to alter or amend substantive legislation or to reassign vetoed appro-priations); Brown v. Firestone, 382 So. 2d 654 (Fla. 1980). See also Chiles v. United Faculty of Florida, 615 So. 2d 671 (Fla. 1993).
11 See Chiles v. Children A, B, C, D, E, & F, 589 So. 2d 260 (Fla. 1991) (McDonald, J., dis-senting); Brown v. Firestone, 382 So. 2d 654; In the Interest of R.V., 626 So. 2d 1009 (Fla. 1st D.C.A. 1993).
12 Dickinson v. Washington Federal Savings & Loan Association of Miami Beach, 281 So. 2d 603 (Fla. 3d D.C.A. 1973), aff’d, 282 So. 2d 167.
13 See Thompson v. State, 342 So. 2d 52 (Fla. 1977).
14 Trianon Park Condo-minium Association, Inc., 468 So. 2d 912.
15 See Sandlin v. Criminal Justice Standards & Training Commission, 531 So. 2d 1344 (Fla. 1988); Sullivan v. Askew, 348 So. 2d 312 (Fla. 1977), cert. den., 434 U.S. 878.
16 Owens v. State, 316 So. 2d 537 (Fla. 1975).
17 Phillips v. Board of Pardons, 487 So. 2d 1154 (Fla. 1st D.C.A. 1986).
18 Asay v. Florida Parole Commission, 649 So. 2d 859 (Fla. 1994), cert. den., 116 S.Ct. 591; Parole Commission v. Lockett, 620 So. 2d 153, 154–155 (Fla. 1993) (“[T]he clemency process is derived solely from the constitution and is strictly an executive branch function, and. . . , consequently, the Legislature, by statute, may neither preempt nor overrule the clemency rules without vio-lating the separation of powers doctrine expressly set forth in article II, section 3, of the Florida Constitution”); Bundy v. State, 497 So. 2d 1209 (Fla. 1986). But see Turner v. Wain-wright, 379 So. 2d 148 (Fla. 1st D.C.A. 1980), dism., 384 So. 2d 1377, aff’d 389 So. 2d 1181 (application of open meetings statute to Parole Commission meetings did not interfere with executive authority over clemency).
19 State v. Bloom, 497 So. 2d 2 (Fla. 1986).
20 State v. Donner, 500 So. 2d 532 (Fla. 1987).
21 Friends of the Everglades, Inc. v. Zoning Board, Monroe County, 478 So. 2d 1126 (Fla. 1st D.C.A. 1985), rev. den. 488 So. 2d 830.
22 Goode v. Wainwright, 448 So. 2d 999 (Fla. 1984), cert. den. 466 U.S. 932.
23 See Goldwater v. Carter, 444 U.S. 996 428 (1979); Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103 (1948); Meyers v. United States, 272 U.S. 52 (1926); Brown v. Firestone, 382 So. 2d 654.
24 See, e.g., Coleman v. Austin, 521 So. 2d 247 (Fla. 1st D.C.A. 1988).
25 Compare Turner v. Wainwright, supra (application of open meetings statute did not interfere impermissibly with executive authority), with Locke v. Hawkes, 595 So. 2d 32 (Fla. 1992) (application of public records statute to members of legislature consti-tutional).
26 See Fla. Stat. §120.68(1) (right to judicial review of all final agency action).
27 Dickinson v. Washington Federal Savings & Loan Association of Miami Beach, 281 So. 2d 603.
28 Fla. Stat. §120.52(1)(a); see Thompson v. State, 342 So. 2d 52.
29 See Fla. Const. art. VII, §1(d). But see Chiles, 589 So. 2d 260 (McDonald, J., dissenting) (balanced budget provision of Florida Constitution imposes obligation on all branches of government and is not solely legislative responsibility); Fla. Const. art. IV, §13; art. III, §19(g). (1992 amendments to Florida Constitution granting executive and judiciary greater authority to reduce appropriations in such cases).
30 Chiles, 589 So. 2d 260; Askew v. Cross Key Waterways, 372 So. 2d 913 (Fla. 1979); Jones v. Dept. of Revenue, 523 So. 2d 1211 (Fla. 1st D.C.A. 1988); A.T. v. State, 516 So. 2d 1104 (Fla. 2d D.C.A. 1987); T.D. v. State, 486 So. 2d 40 (Fla. 2d DCA 1986); State ex rel. Dept. of Health & Rehabilitative Services v. Upchurch, 394 So. 2d 577 (Fla. 5th D.C.A. 1981).
31 Carter v. City of Stuart, 468 So. 2d 955 (Fla. 1985); Askew, 372 So. 2d 913; State ex rel. Fulton v. Ives, 123 Fla. 401, 167 So. 394 (1936).
32 Smith v. State, 537 So. 2d 982 (Fla. 1989) (invalidating statute that authorized Supreme Court to adopt sentencing guidelines); Foley v. State ex rel. Gordon, 50 So. 2d 179 (Fla. 1951).
33 Fla. Const. art. III, §17. See Nixon v. United States, 506 U.S. 224 (1993) (impeachment is political question left to Congress).
34 Fla. Const. art. III, §12; art. VII, §1(c); Florida House of Representatives v. Martinez, 555 So. 2d 839 (Fla. 1990); State ex rel. Kurz v. Lee, 121 Fla. 360, 163 So. 859 (1935); State ex rel. Davis v. Green, 95 Fla. 117, 116 So. 66 (1928).
35 Chiles, 589 So. 2d 260. But see Fla. Const. art. III, §19(c); art. IV, §13, reducing the scope of the legislature’s power in this area.
36 Whitney v. Hillsborough County, 99 Fla. 628, 127 So. 486 (1930). See Fla. Const. art. VII, §1(a).
37 B.H. v. State, 645 So. 2d 987 (Fla. 1994), cert. den. 515 U.S. 1132 (administrative agency may not be delegated open-ended authority to determine elements of crime); State v. Mitchell, 652 So. 2d 473 (Fla. 2d D.C.A. 1995) (legislature invalidly delegated authority to Bureau of Alcohol, Tobacco, and Firearms when it authorized bureau to define crime by declaring device destructive under Fla. Stat. §790.001(4)).
38 Petition of The Florida Bar, 61 So. 2d 646 (Fla. 1952).
39 Fla. Const. art. III, §16. But see Fla. Const. art. III, §16(f) (conferring reapportionment power on Florida Supreme Court if legislature fails to adopt valid reapportionment plan).
40 Fla. Const. art. III, §2. See Harden v. Garrett, 483 So. 2d 409 (Fla. 1986).
41 Coalition for Adequacy & Fairness in School Funding, Inc. v. Chiles, 680 So. 2d 400 (Fla. 1996).
42 See B.H. v. State, 645 So. 2d 987; State v. Mitchell, 652 So. 2d 473.
43 Chiles, 615 So. 2d at 673.
44 Id.
45 Sarasota County School District v. Sarasota Classified/Teachers Association, 614 So. 2d 1143, 1148 (Fla. 2d D.C.A. 1993), dism., 630 So. 2d 1095.
46 Sarasota County School District, 614 So. 2d 1143.
47 Griffin v. Stonewall Insurance Co., 346 So. 2d 97 (Fla. 3d D.C.A. 1977).
48 See Fraternal Order of Police, Metropolitan Dade County, Lodge No. 6 v. Dept. of State, 392 So. 2d 1296 (Fla. 1980); Ervin v. Collins, 85 So. 2d 852 (Fla. 1956), 59 A.L.R.2d 706; Shupe v. State, 516 So. 2d 73 (Fla. 5th D.C.A. 1987) (sen-tence depriving prisoner of gain time was not option given to trial courts by legislature).
49 See generally 1 England & Levinson, Florida Administrative Practice Manual §§1.04(a)–(c) (Butterworth 1979–1997).
50 See Johnson v. State, 660 So. 2d 637 (Fla. 1995), cert. den., 116 S.Ct. 1550; Board of County Com-missioners of Brevard County v. Snyder, 627 So. 2d 469 (Fla. 1993) (rezoning decisions charac-terized as executive or quasi-judicial); A.T. v. State, 516 So. 2d 1104 (Fla. 2d D.C.A. 1987). But see Metropolitan Dade County v. Jennings Construction Co., 196 So. 2d 33 (Fla. 3d D.C.A. 1967) (rezoning ordered but no consideration given to separation of powers).
51 See Fla. Const. art. III, §§2, 15; Locke v. Hawkes, 595 So. 2d 32 (Fla. 1992); Harden v. Garrett, 483 So. 2d 409 (Fla. 1986) (no inherent power to review contested elections).
52 Rose v. Palm Beach County, 361 So. 2d 135 (Fla. 1978).
53 Fla. Const. art. III, §19(c); Fla. Stat. §§216.023(2), (6), 216.031; Chiles v. Children A, B, C, D, E, & F, 589 So. 2d 263 (Fla. 1991).
54 The Florida Bar Advisory Opinion HRS Nonlawyer Counselor, 518 So. 2d 1270 (Fla. 1988); The Florida Bar In re Advisory Opinion Concerning Applicability of Chapter 119, Florida Statutes, 398 So. 2d 446 (Fla. 1981).
55 Fla. Const. art. V, §2(a). See TGI Friday’s, Inc. v. Dvorak, 663 So. 2d 606 (Fla. 1995).
56 Johnson v. State, 660 So. 2d 648 (Fla. 1995), cert. den. 116 S.Ct. 1550.
57 Ex parte Earman, 85 Fla. 297, 95 So. 755 (1923). See Ducksworth v. Boyer, 125 So. 2d 844 (Fla. 1960); Walker v. Bentley, 660 So. 2d 313 (Fla. 2d D.C.A. 1995), aff’d 678 So. 2d 1265.
58 Patterson v. State, 513 So. 2d 1257 (Fla. 1987).
59 Larson v. State, 572 So. 2d 1368 (Fla. 1991); Reynolds v. State, 598 So. 2d 188 (Fla. 1st DCA 1992).
60 L.M. v. State, 587 So. 2d 648 (Fla. 1st D.C.A. 1991).
61 Broward County v. La Rosa, 505 So. 2d 422 (Fla. 1987); Laborers’ International Union of North America, Local 478 v. Burroughs, 522 So. 2d 852 (Fla. 3d D.C.A. 1988), rev. dism., 531 So. 2d 167, modified, 541 So. 2d 1160. See Smith v. Dept. of Insurance, 507 So. 2d 1080 (Fla. 1987) (limitation on non-economic tort damages violated right of access to courts).
62 Peck Plaza Condominium v. Division of Florida Land Sales & Con-do-miniums, Dept. of Business Regulation, 371 So. 2d 152 (Fla. 1st D.C.A. 1979).
63 Palm Harbor Special Fire Control District v. Kelly, 516 So. 2d 249 (Fla. 1987).
64 Key Haven Associated Enterprises, Inc. v. Board of Trustees of Internal Improvement Trust Fund, 427 So. 2d 153 (Fla. 1983); State ex rel. Dept. of General Services v. Willis, 344 So. 2d 580 (Fla. 1st D.C.A. 1977); Dept. of Revenue of Florida v. Young American Builders, 330 So. 2d 864 (Fla. 1st D.C.A. 1976). See F.S. 120.52(8), 120.56(1)(a), (2)(a).
65 See Times Publishing Co. v. Ake, 660 So. 2d 255 (Fla. 1995); Locke v. Hawkes, 595 So. 2d 32. See also Fla. Const. art. I, §24; Fla. R. Jud. Admin. 2.051.
66 Office of the State Attorney, Fourth Judicial Circuit of Florida v. Parrotino, 628 So. 2d 1097, 1099 (Fla. 1993) (legislature cannot waive immunity of judicial or quasi-judicial officers, because “subjecting the judiciary and state’s quasi-judicial officers to punitive lawsuits for official actions obviously. . . would impinge upon the independence of these offices”). See State, Dept. of Corrections v. Vann, 650 So. 2d 658 (Fla. 1st D.C.A. 1995), aff’d, 662 So. 2d 339 (courts should not find tort cause of action against other branches).
67 The Florida Bar v. Massfeller, 170 So. 2d 834 (Fla. 1964).
68 See, e.g., Makemson v. Martin County, 491 So. 2d 1109 (Fla. 1986) (attor-ney fee statute for representation of indigent criminal defendants); The Florida Bar v. Moses, 380 So. 2d 412 (Fla. 1980) (legislature, with sufficient stan-dards, may authorize “qualified” nonlawyers to practice law before adminis-tra-tive agencies). But see The Florida Bar re Advisory Opinion HRS Non-lawyer Counselor, 547 So. 2d 909 (Fla. 1989) (nonlawyers may not represent HRS in certain juvenile proceedings).
69 Fla. Const. art. V, §2(a); Williams v. First Union National Bank of Florida, 591 So. 2d 1137 (Fla. 4th D.C.A. 1992).
70 Reddick v. Charles W. Infinger Construction, 617 So. 2d 723 (Fla. 1st DCA 1993), rev. den., 626 So. 2d 207 (rules of procedure governing workers’ compensation hearings adopted by Florida Supreme Court not based on court’s power under Art. V, §2(a), but rather delegation of authority by statute). See also In re Amendments to the Florida Rules of Workers’ Compensation Procedure, 664 So. 2d 945 (Fla. 1995).
71 See Dept. of Health & Rehabilitative Services of State of Florida v. Crossdale, 585 So. 2d 481 (Fla. 4th D.C.A. 1991).
72 See TGI Friday’s, Inc. v. Dvorak, 663 So. 2d 606.

Johnny C. Burris of the Shepard Broad Law Center at Nova Southeastern University, Ft. Lauderdale, received his J.D. from Northern Kentucky University in 1978 and LL.M. in 1984 from Columbia University.

Administrative Law