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The Deep Roots of Florida’s Public Official Standing Doctrine and Its Vital Role in Preserving Our Constitutional Separation of Powers

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Florida’s public official standing doctrine prohibits members of the executive branch from challenging the constitutionality of legislative action, unless the public official has suffered a personal injury. The doctrine was first clearly articulated by the Florida Supreme Court in State ex rel. Atlantic Coast Line Railway Co. v. State Board of Equalizers, 94 So. 681 (Fla.1922). The purpose was to protect the power of judicial review, which is the “check” the judiciary provides to maintain our constitutional separation of powers.[1] More recently, in Sch. Dist. of Escambia County v. Santa Rosa Dunes Owners Ass’n, Inc., 274 So. 3d 492 (Fla. 1st DCA 2019), review denied, 2020 WL 1542086 (Fla. Apr. 1, 2020), the First District Court of Appeal re-examined and reaffirmed the importance of limiting the standing of executive branch officials to challenge legislative action. This article examines the history and purpose of the public official standing doctrine as well as its prominent role in recent rulings by the First District.

The public official standing doctrine was originally announced at a time when the power of judicial review was under attack by powerful political forces. Those forces were inspired by Teddy Roosevelt and driven by organized labor interests angered by the U.S. Supreme Court’s exercise of judicial review in striking down multiple labor-friendly laws including, most notably, child labor laws. By the time Atlantic Coast Line came before Florida’s high court in October 1922, organized labor had mounted an effective campaign at the federal level to elect congressional representatives who would support both legislation and constitutional amendments designed to abrogate, or at least severely limit, the power of judicial review.

The doctrine, as announced in Atlantic Coast Line, was broad in its prohibitions because the court, reacting in part to the fierce attacks by organized labor on a national level, sought to build a strong wall between the judiciary and the executive that would protect the power of judicial review. Almost 100 years later, in Santa Rosa Dunes, the First District, relying upon Atlantic Coast Line, rejected an attempt by the executive branch to erode the public official standing doctrine. Examining the history of the public official standing doctrine, particularly the political climate of 1922 into which it was born, illuminates why this doctrine is so important: It safeguards the power of judicial review, which preserves the separation of powers mandated by our state constitution, and prevents the executive branch from nullifying the laws it is required to faithfully execute.

Opposition to Judicial Review from the Beginning

Attacks on the power of judicial review are nearly as old as the power itself. Since the doctrine was first articulated in Marbury v. Madison, 5 U.S. 137 (1803),[2] legislators have debated both the wisdom of restraining the judicial power as well as the extent of their own power to impose those restraints. That debate first birthed legislation in 1823 when Senator Richard Johnson of Kentucky introduced a bill requiring that all justices must concur before the power of judicial review could be used to nullify the legislative acts of either the states or the federal government.[3]

After Senator Johnson’s proposal failed, there were at least 14 other attempts by 19th century legislators to restrain the power of judicial review by requiring some form of supermajority consensus from the members of the Court to declare a law unconstitutional.[4] None were successful, but the tension between the legislative and judicial branches remained. Rapid industrialization of the U.S. economy at the end of the 19th century would contribute to a more intense scrutiny of the Court’s power.

By the 1890s, the Second Industrial Revolution was at its apex. Factory owners demanded long hours for nominal wages. Increasingly intolerable labor conditions led to an explosion in labor union membership. The number of union members rose by over 400,000 between 1890 and 1900 to reach 993,000 members.[5] As the membership in unions grew, so did their political influence and their demands for legislation establishing minimum labor standards.

The State of New York passed the Bakeshop Act in 1895 regulating health conditions in bakeries and prohibiting employees from working more than 10 hours per day or 60 hours per week. In Lochner v. New York, 198 U.S. 45, 53 (1905), the Supreme Court struck down the law in a 5-4 decision finding that “[t]he general right to make a contract in relation to his business is part of the liberty of the individual protected by the 14th Amendment of the Federal Constitution.” [6]

Former President Theodore Roosevelt decried the decision in a 1910 speech to the Colorado state legislature as being “against the democratic principles of government by the people under the forms of law.” The fiery speech painted the Court as an overreaching enemy of social justice that refused to allow the “abuse” of poor working conditions to be remedied.[7]

After Roosevelt’s speech, his friend and former Secretary of State Elihu Root queried in a letter to then-President Taft whether Roosevelt “really meant that he would, if he could, deprive the courts of the power to pass upon the constitutionality of laws”; a power that Root considered to be “the most valuable contribution of America to political science.”[8] Taft was also alarmed by Roosevelt’s comments, labeling “Theodore’s” speech “an attack upon our system at the very point where I think it is strongest.”[9]

Two years later, during his 1912 Bull-Moose Party run for the presidency, Roosevelt articulated a specific proposal to guard against instances in which “justice is resolutely denied by the courts.”[10] With Lochner still clearly in mind, he proposed that if a law designed to “promote social and industrial justice” is declared unconstitutional on due process grounds, then “after a period…which could not be less than two years after the election of the legislature which passed the original law, the people themselves shall have the right to declare whether or not the proposed law is to be treated as constitutional.”[11] Roosevelt further opined it was “the people, and not the judges who are entitled to say what their Constitution means….”[12] This was a clear challenge to the doctrine of judicial review by a former U.S. president.

While Roosevelt was bringing the concept of curtailing judicial power into the mainstream of the national political discourse, organized labor was chipping away at the power in more concrete ways on the state level. The territory of Arizona had struggled for decades to achieve statehood. In 1909, organized labor interests took up the struggle in earnest because they saw a labor-friendly state constitution as the surest way to prohibit unfriendly legislation.[13] Labor interests dominated Arizona’s constitutional convention in 1910, which resulted in a proposed state constitution that included a clause providing for the popular recall of judges. Voters approved the proposal by a large majority.[14] The clause was demanded by labor interests so they could remove judges that blocked the implementation of labor-friendly legislation.[15] An angry Taft promptly vetoed the congressional resolution providing for the admission of Arizona as a state. He allowed Arizona’s admission only after voters approved a constitution in which the recall provision was eliminated.[16] The fact that the clause had made it into the first constitution of Arizona at all showed the increasing influence of organized labor.

Post World War I, labor issues brought the power of judicial review to the forefront once more in the case of Hammer v. Dagenhart, 247 U.S. 251, 276 (1918), overturned, United States v. Darby, 312 U.S. 100 (1941). In that case, the Supreme Court considered the constitutionality of the Keating-Owing Act, passed in 1916. The act prohibited interstate commerce of any merchandise that had been made by children under the age of 14. In a 5-4 opinion, the Court struck down the act on the basis that Congress did not have the power under the Commerce Clause to regulate manufacturing within a state just because the products manufactured subsequently traveled in interstate commerce.[17]

Outrage over Hammer grew as the nation turned its attention from the Great War to domestic matters. No group was more vocal in its criticism than the American Federation of Labor (AFL) and its leader Samuel Gompers who called the decision in Hammer “a shock to the American people.” Gompers insisted the nation “must regulate the veto power of the Supreme Court and eliminate an intolerable situation that allows five men to defeat the will of the nation.”[18]

Hammer was a catalyst for a succession of new attempts to restrain the Court’s power.[19] Those attempts included three unsuccessful tries by labor-friendly Arizona congressman Carl Hayden between 1918 and 1921 to pass a constitutional amendment that would have required a supermajority vote of the Court in order to declare a law unconstitutional.[20]

Then in 1921, former President Taft was confirmed as chief justice of the Supreme Court. Chief Justice Taft saw the Supreme Court as entering a “period of agitation against its powers, such as it had in the period before [John] Marshall came onto the Bench,” and he saw “labor organizations” as a source of that agitation.[21] His selection as chief justice signaled to the unions that the Court’s opposition to labor-friendly legislation would likely continue. For labor interests and, more specifically the AFL, words of opposition were no longer sufficient. Going into the mid-term elections of 1922, it was time to take a more aggressive stand against the power of judicial review.

The Anti-Judicial Review Offensive of 1922

Recognizing the need to increase the political influence of workers, a coalition of political parties, including the Farm Labor Party and the Socialist Party, convened in Chicago on February 21, 1922. Their purpose was to formulate a strategy for using the “combined voting strength of organized workers” to elect candidates who supported their shared agenda.[22] The convention established a new organization, the Conference for Progressive Political Action (CPPA). The CPPA articulated its platform in its “Address to the American People,” which contained numerous declarations of grievances inflicted by an “invisible government of plutocracy and privilege” including a grievance against the judiciary: “They have through the Courts nullified righteous laws of state and nation for the protection of human rights and exalted judge-made laws above the statutes.” [23]

On May 15, 1922, less than three months after the CPPA’s Chicago convention, the Supreme Court invalidated another congressional effort to curtail the use of child labor. Bailey v. Drexel Furniture, 259 U.S. 20, 38 (1922), involved a 1919 congressional attempt to use its taxing power to penalize businesses using child labor. Chief Justice Taft saw the case as indistinguishable from Hammer, which had found Congress’ commerce power insufficient to regulate child labor.[24] The high Court found Congress could not use the power to tax goods simply as a way to discourage or eliminate child labor and that to allow such a tax to stand “would be to break down all constitutional limitation of the powers of Congress and completely wipe out the sovereignty of the states.”[25]

Less than a month later, on June 14, Republican Senator Robert La Follette of Wisconsin used Bailey as the flash point for a fiery speech to the annual convention of the AFL in Cincinnati. La Follette considered judicial review of congressional acts to be “judicial usurpation” and a “monstrous growth” that must be “chopped down.”[26] He called for a constitutional amendment that would neuter the power of judicial review by prohibiting federal courts, other than the Supreme Court, from declaring a law unconstitutional. The proposed amendment also provided for a legislative veto of any Supreme Court action finding a law unconstitutional.[27]

La Follette’s attack on the power of judicial review made headlines the next day in newspapers across the country. It received an immediate rebuke from his opponents. One such rebuke came from a fellow Republican, Albert Beveridge, who had served with La Follette in the Senate. Beveridge labeled La Follette the “daring and brilliant leader of extreme American radicalism” and called his proposal for eliminating judicial review “a radical revolutionary attempt to destroy our distinctly American form of constitutional government.”[28] As the mid-term elections approached, passions were fully enflamed on both sides of the debate.

The November 1922 mid-term election was a crushing defeat for the Republican Party. Although Republicans maintained control of Congress, their slim majority was fractured between conservative Republicans and the party’s more liberal (“progressive”) wing, led by Senator La Follette. That fracture gave the “radical” La Follette the power to create voting coalitions between progressive Republicans and like-minded Democrats.[29] Suddenly, the senator who had likened the judiciary’s review power to a “monstrous growth” was in a position to advance his agenda to eviscerate the power of judicial review.

The Birth of Florida’s Public Official Standing Doctrine

At the same time Americans were voting in the 1922 mid-term elections, the Florida Supreme Court was considering Atlantic Coast Line. Efforts to erode the power of the judiciary had, to that point, been primarily focused on curbing or outright prohibiting the power of courts to declare a legislative act unconstitutional. In Atlantic Coast Line, however, a new and more subtle threat to judicial review emerged when the executive branch exercised its own “review” of the constitutionality of certain legislative action.

In Atlantic Coast Line, a railroad company complained its property had been improperly valued and assessed for tax purposes. A 1921 Florida law[30] allowed railroads to appeal tax assessments to the State Board of Equalizers, which consisted of the governor, the state treasurer, and the attorney general. The Board of Equalizers, however, refused to hear the appeal because Florida’s attorney general, Rivers Buford, declared the law “unconstitutional.”[31] Buford alleged the title of the statute was not sufficient to put the public on notice of its provision allowing the right of appeal and, therefore, the statute failed to comply with the requirements of the Florida Constitution. Atlantic Coast Line responded by petitioning the Florida Supreme Court for a writ of mandamus compelling the State Board of Equalizers to hear its appeal.[32]

The chief justice of the Florida Supreme Court in 1922 was Jefferson Beale Browne, who would go on to write the majority opinion in Atlantic Coast Line.[33] When Browne made an unsuccessful gubernatorial bid in 1908,[34] he advocated for the separation of powers, particularly against executive branch interference with the courts. As a regular part of his stump speech, Browne stated: “I don’t believe in the executive department interfering with the constitution or with the courts….”[35] His official campaign platform was even more emphatic:

The constitution of Florida provides: The powers of government of the state of Florida shall be divided into three departments — legislative, executive and judicial — and no person properly belonging to one of the departments shall exercise any powers appertaining to either of the others, except in cases expressly provided for by the — Article 2.[36]

The spirit of this enactment prohibits any interference by the legislative, executive or judicial departments of the government with any of the rights or prerogatives of the other, and I regard this inhibition as most important for the preservation of a true republican form of government.[37]

It is reasonable to assume that when Browne was elected as chief justice, he retained the same strong conviction about the separation of powers he articulated years earlier as a candidate to be the chief of the executive branch. As he would make clear in his Atlantic Coast Line opinion, he was also well aware of the serious attacks on the power of judicial review by labor interests and their political allies, such as Senator La Follette. He would have read both the widely printed accounts of La Follette’s June 1922 speech to the AFL, as well as the published rebuttals.

This was the backdrop in front of which Atlantic Coast Line came before the Florida Supreme Court in the fall of 1922. It was a time during which the state’s high court would have viewed the movement to abolish judicial review as a serious threat in the federal court system with the potential to, at a minimum, delegitimize the doctrine on a state level. Chief Justice Browne’s opinion in the case demonstrates that he recognized the movement as a tangible threat led by politicians who now had real power.

For Browne, Atlantic Coast Line was not a pedestrian case about the proper procedure for appealing property valuations or even about the constitutionality of an otherwise unremarkable law. Rather, it was about protecting the separation of powers mandated by Article II of the Florida Constitution,[38] an issue that Browne had been defending since his gubernatorial campaign. It was also an opportunity for Florida’s high court to clearly define its position in the national debate on the judicial power of review.

After a recitation of Atlantic Coast Line’s relevant facts, the chief justice makes brief reference to the history of criticism leveled at the power of judicial review starting from the time when “Mr. Chief Justice Marshall first laid down the doctrine,” an obvious reference to Marbury v. Madison. He then points to a more recent “movement” seeking to limit the power of judicial review or, perhaps, eliminate it all together:

For many years the doctrine expounded by Chief Justice Marshall seemed settled and secure, and no longer questionable. Recently a well-organized movement has been inaugurated in this country to take this power away from the courts, and at the recent election there were nearly 60 candidates for Congress who have pledged themselves to modify, if not to entirely abrogate, this great doctrine, without which governments limited by written Constitutions will be destroyed. Any tendency on the part of the courts to extend this doctrine and to recognize the right or power of ministerial officers to refuse to enforce a law found on the statute books, whether, in their judgment, it is unconstitutional, will give impetus to the movement to abrogate or limit this power of the courts.[39]

Justice Browne’s concerns were clear. The seemingly “settled and secure” doctrine of judicial review that had withstood violent attacks in the past was once again under siege — this time, by a “well-organized movement.” Although Browne does not identify the “movement” by name, his reference to “nearly 60 candidates for Congress” indicates he had a specific group in mind — the nearly 60 individuals with Labor or Socialist Party affiliations who ran that year for the House of Representatives.[40] Those candidates were likely spawned from the CPPA that had organized in Chicago in February 1922 with an agenda that included electing candidates that would curb the power of judicial review.[41] For Browne, the court’s decision in Atlantic Coast Line would either rebuke or “give impetus to the movement to abrogate or limit” the power of judicial review.[42]

The question before the court, as framed by Chief Justice Browne, was straightforward: “Has a ministerial officer the right or power to declare an act unconstitutional, or to raise the question of its unconstitutionality without showing that he will be injured in person, property, or rights by its enforcement?”[43]

Browne called the question “most important” because “it involves the right of the branch of the government, other than the judiciary, to declare an act of the Legislature to be unconstitutional.”[44] In other words, the case directly concerned executive branch infringement on the power of judicial review.

The answer to the court’s “most important” question of whether a “ministerial officer” has the power to declare a statute unconstitutional was a resounding “no.” The right to declare a legislative act invalid is “purely a judicial power, and cannot be exercised by the officers of the executive department.”[45] The executive’s job is to follow the law unless and until the law is declared unconstitutional by the courts.

It was not enough, however, for the court to answer the question with a “yes” or “no.” This executive act of nullification came at a time when attacks on the judiciary had reached a fever pitch, when organized labor had gained traction in its campaign to abrogate the power of judicial review, and when the judiciary’s most vocal critic, Senator La Follete, had arguably become the most powerful man in the U.S. Congress. Justice Browne, a man whose opposition to executive interference with the judiciary was very strong and very public, had the opportunity to provide a defense of judicial review from the highest court in the state. In doing so, he, along with the court’s majority, articulated an intentionally unyielding doctrine designed to be a bulwark against future usurpations of judicial power.

The doctrine is known today as the public official standing doctrine.[46] In the years since Atlantic Coast Line was decided, the court has explained that a public official’s “[d]isagreement with a constitutional or statutory duty, or the means by which it is to be carried out, does not create a justiciable controversy or provide an occasion to give an advisory judicial opinion.”[47]

As originally stated by the court, it provided that a ministerial officer could not raise the question of a law’s constitutionality but “must obey it, until in a proper proceedings its constitutionality is judicially passed upon.”[48] However, “an officer who can show that he would be injured in his person or property or other material right may raise the question of the constitutionality of a statute.”[49] Simply put, if a public official could claim standing as a private citizen because of an injury they suffered, he or she would not lose that standing simply by virtue of being a public official. Notably, although the provision for injury to the official’s person or property is often referenced as the “personal injury exception,” it is really not an exception, but rather an exclusion from the rule.

As Justice Kenneth Bell would articulate decades later, there is only one true exception to the public official standing doctrine. “The sole exception to the rule of law set forth in Atlantic Coast Line is known as the ‘public funds’ exception.”[50] The Florida Supreme Court has found that “sole exception” is also “a narrow exception.”[51] In brief, the public funds exception provides that the public official may challenge the constitutionality of a law if the law requires the public official to expend public funds.[52]

As a final reinforcement of its opinion, the Atlantic Coast Line court ends with a quote from a sister state supreme court:

Laws are presumed to be, and must be treated and acted upon by subordinate executive functionaries as, constitutional and legal, until their unconstitutionality or illegality has been judicially established; for in a well-regulated government obedience to its laws by executive officers is absolutely essential and of paramount importance. Were it not so, the most inextricable confusion would inevitably result, and “produce such collision in the administration of public affairs as to materially impede the proper and necessary operations of government.” State ex rel. New Orleans Canal & Banking Co. v. Heard, 18 So. 746, 752 (La. 1895).

The public official standing doctrine is a bar against nearly all executive intrusion upon judicial power. That bar helps maintain the separation of powers between the three branches of our government, as mandated by Fla. Const. art. II, §3. Without an effective separation of powers, one branch cannot effectively “check and balance” the other, and the people risk “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands.” James Madison called such an accumulation “the very definition of tyranny.”[53] More specifically, and as was the concern in Atlantic Coast Line, the doctrine avoids the accumulation of power in the executive branch by prohibiting it from deciding whether it will enforce the laws enacted by the people’s duly elected legislative representatives. If that prohibition did not exist, the executive branch could nullify legislative acts by declaring them “unconstitutional” in a simultaneous usurpation of both legislative and judicial powers.

The public official standing doctrine was, of course, not created in a vacuum. Had the facts of Atlantic Coast Line come before the Florida Supreme Court at a different time in history, or with a different chief justice, that court may not have even heard the railroad’s extraordinary writ petition, much less have formulated such an unyielding doctrine that prohibits the executive branch from even “raising the question”[54] of a law’s constitutionality.

New Attacks on Judicial Review and the Separation of Powers

In the recent case of Santa Rosa Dunes, public officials, once again, intruded into the province of the judiciary by challenging the constitutionality of a legislative act. That case followed on the heels of a similar case involving ad valorem taxation of leasehold property, Island Resorts Investments, Inc. v. Jones, 189 So. 3d 917 (Fla. 1st DCA 2016). The question in both cases was whether land titled to Escambia County, but subject to a lease term of 99 years, could be subjected to ad valorem taxation.[55] The precise question public officials raised in both cases was whether F.S. §196.199(2)(b) could constitutionally classify leasehold interest of less than 100 years as intangible personal property interests subject solely to intangible taxes. In Island Resorts, the Tax Collector of Escambia County challenged the constitutionality of the taxing statute. The School District of Escambia County challenged the constitutionality of the same statute in Santa Rosa Dunes. Both the Tax Collector and the school district were “public officials.”

In each case, the public official argued that the public official standing doctrine only applies when the official is challenging a law that he or she is charged with administering or enforcing. However, as the First District recognized in Santa Rosa Dunes, Atlantic Coast Line did not limit application of the doctrine to instances in which the constitutional challenge is made to laws that the official is tasked with enforcing:

The doctrine exists to prevent public officials from nullifying legislation through their refusal to abide by the law and requires them instead to defer to the judiciary’s authority to consider the constitutionality of a legislative act. Atl. Coast Line, 94 So. at 682-83 (“The right to declare an act unconstitutional is purely a judicial power, and cannot be exercised by the officers of the executive department under the guise of the observance of their oath of office to support the Constitution.”). The prohibition against public officials attacking the constitutionality of a statute is therefore not limited to those public officials charged with a duty under the challenged law. Consistent with the purpose of the doctrine, the prohibition extends to public officials whose duties are “affected” by the challenged law.[56]

In both Island Resorts and Santa Rosa Dunes, the Florida Supreme Court denied the public officials’ petitions seeking review.[57]

If, in fact, the right to declare an act unconstitutional is “purely a judicial power,” it then follows that a public official may not exercise that power merely because the act in question does not directly govern the administration of his or her duties. Or, as the Santa Rosa Dunes court stated, “the public official standing doctrine broadly prohibits ministerial officers from challenging legislative enactments.”[58]

In Santa Rosa Dunes, the Escambia County School District went a step further. It attempted to dilute the public official standing doctrine by arguing that the personal injury “exception” to the public official standing doctrine is not limited to an actual personal injury, but rather could include injury to the agency’s budget. The school district claimed “it would have to refund about [$7 million] in ad valorem tax revenue it has already collected and escrowed, and it would lose its material and constitutional right to levy ad valorem taxes, subjecting it to a loss of future tax revenue.”[59] Relying on Atlantic Coast Line, the First District rejected this attempt to evade the public official standing doctrine by affirming that “the type of personal injury necessary to allow a public official to challenge the constitutionality of a statute is limited to injuries that do ‘not grow out of the obligation of his oath of office, nor out of his official position.’”[60]

The reason for the “personal” part of “personal injury” is clear. If it were not so, any public official who believed a legislative act harmed their office, decreased their budget, or could show some other type of negative impact would have standing to challenge the act’s constitutionality. Allowing standing in such circumstances would gut the public official standing doctrine’s protection of the powers of judicial review by allowing public officials to establish standing by alleging any negative impact on the agency or its budget.

Finally, there may be a temptation to apply the doctrine loosely when the offending branch of government argues a public official is acting to protect the interests of the citizens. For example, a school district, may argue, as it did in Santa Rosa Dunes, that a taxing statute harms the public by reducing revenue that would go to fund the education of children. The implicit, if not explicit, companion to that argument is that the public official is the party in the best position to protect the public from the statute through a constitutional challenge because the official has the necessary financial resources and expertise to mount a successful constitutional challenge.

The Florida Supreme Court directly addressed this argument in Crossings at Fleming Island Community Development District v. Echeverri, 991 So. 2d 793 (Fla. 2008), in which the Clay County Property Appraiser challenged the constitutionality of legislation that classified a special development district as a municipality for tax purposes. The court acknowledged the public official had “superior perspective” regarding the law and was “perhaps uniquely situated to protect taxpayers”; however, the importance of ensuring that public officials “put into effect” the will of the people as expressed through their elected representatives was “more compelling.”[61] Put another way, the constitutional separation of powers trumps these other concerns. It is not the role of the executive branch to protect citizens from legislation that has been approved by their elected representative and signed into law by their chief executive. That is “purely a judicial power” reserved exclusively to Florida’s judicial branch.[62]


In the aftermath of Santa Rosa Dunes, Florida courts must continue to guard against any attempt by one branch of our state government to exercise “any powers appertaining to either of the other branches.”[63] The public official standing doctrine, as forged in the political fires of 1922 and as articulated in Atlantic Coast Line by Chief Justice Browne, is “binding authority”[64] that safeguards the power of judicial review. Courts must be vigilant to defend the power of judicial review, never for the sake of the power itself, but as a “check” to ensure the branch charged with executing the laws does not nullify those laws by “even rais[ing] the question of [the law’s] unconstitutionality.”[65] Any dilution of the public official standing doctrine threatens the power of judicial review and, therefore, Florida’s constitutional separation of powers that is, in the words of Justice Browne, “most important for the preservation of a true republican form of government.”[66]

[1] Dep’t of Transp. v. Ass’n of Am. Railroads, 575 U.S. 43, 76 (2015) (Thomas, J. concurring).

[2] Thomas Jefferson defeated John Adams in the presidential election of 1800. Adams appointed a number of judges who were confirmed by the Senate, but not given their commissions prior to Adams leaving office. In Marbury, the U.S. Supreme Court was asked to issue a writ of mandamus compelling Thomas Jefferson’s Secretary of State, James Madison, to deliver those commissions. The Court held that the Constitution was the supreme law of the land and the Court had the power to review a law of Congress and determine whether that law was “repugnant” to the Constitution. Exercising that power of judicial review, the Court found the provisions of the Judiciary Act of 1789 purporting to give the Supreme Court jurisdiction to issue writs of mandamus was void because it conflicted with the jurisdictional boundaries granted the Supreme Court under the Constitution.

[3] 41 Annals of Cong. 28, 18th Cong., 1st Sess. 1823 (Sen. Johnson). An angry Senator Johnson introduced his legislation in response to the Court’s declaration in Green v. Biddle, 21 U.S. 1, 8 (1823), that Kentucky laws restricting property rights were an unconstitutional impairment of contract.

[4] Evan H. Caminker, Thayerian Deference to Congress and Supreme Court Supermajority Rule: Lessons from the Past, 78 Ind. L. J. 73, 117 (2003).

[5] Barry Eichengreen, The Impact of Late Nineteenth-Century Unions on Labor Earnings and Hours: Iowa in 1894, 40 Industrial and Labor Relations Rev. 501 (1987), available at JSTOR,

[6] “During the Lochner era, the Court considered the right to contract and other economic liberties to be fundamental requirements of due process of law….The Court in 1937 repudiated Lochner’s foundations.” See West Coast Hotel Co. v. Parrish, 300 U.S. 379, 386-387, 400 (1937). Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2328 (2016), as revised (June 27, 2016) (J. Thomas, dissenting) (internal citations omitted).

[7] Theodore Roosevelt, Address to the Colorado Legislature, Los Angeles Herald 3, Aug. 30, 1910.

[8] Letter from Root to Taft, Taft Papers, Series 6, Reel 356 (Oct. 14, 1910).

[9] Letter from Taft to Root, Taft Papers, Series 6, Reel 356 (Oct. 15, 1910). Notably, Taft’s correspondence reveals that he agreed with Roosevelt that Lochner had been wrongly decided.

[10] William H. Ransom, Introduction by Theodore Roosevelt, Majority Rule and the Judiciary 13 (1912).

[11] Id. at 13-14.

[12] Id. at 6.

[13] H.A. Hubbard, The Arizona Enabling Act and President Taft’s Veto, 3 Pacific Historical Rev. 318 (1934).

[14] Id. at 322.

[15] Id.

[16] Id.; see also Gary Murphy, “Mr. Roosevelt Is Guilty”: Theodore Roosevelt and the Crusade for Constitutionalism, 1910-1912, 36 J. of American Studies 449 (2002).

[17] Hammer, 247 U.S. at 276. The soundness of the Court’s reasoning was immediately called into question by Justice Holmes’ dissent, which pointed out that earlier decisions of the Court had already established Congress’ broad power to regulate interstate commerce. Id. at 279.

[18] Child Life Must Be Conserved, American Federationist 693-695 (Aug. 1918).

[19] William G. Ross, A Muted Fury 170-171 (1994).

[20] Id. at 218-219.

[21] Letter from Taft to Sutherland, Taft Papers, Series 3, Reel 245 (Sept. 10, 1922).

[22] 31 Railway Maintenance of Way Employes [sic] J. 10 (Mar. 1922).

[23] Id. at 13.

[24] Bailey, 259 U.S. at 39.

[25] Id. at 38.

[26] La Follette Lashes Federal Judiciary: Labor Federation Convention Jeers Taft’s Name as Senator Denounces Supreme Court, New York Times 1, June 15, 1922.

[27] Id.

[28] Proceedings of the Minnesota State Bar Association, 7 Minn. L. Rev. Supp. 116 (Nov. 1922).

[29] Ross, A Muted Fury at 210; See also Edward Ranson, The American Mid-Term Elections of 1922: An Unexpected Shift in Political Power 285 (2007).

[30] Laws of Fla. Ch. 8584, §7, Acts of 1921.

[31] Gov. John Martin later appointed Rivers Buford to the court, where he served until his retirement in 1948. See Florida Supreme Court, Biographies of Former Justices, When Justice Browne left the court, he became a circuit judge. Justice Buford’s dissent in Cormack v. Coleman, 161 So. 844, 849 (Fla. 1935), may indicate some lingering tension between Judge Browne and Justice Buford.

[32] State Equalizers Must Show Cause for Their Action, The Tampa Tribune 1, Oct. 11, 1922.

[33] Born in Key West on June 6, 1857, Justice Browne had already enjoyed a distinguished career of public service prior to his election to the state supreme court. It was said of him that he held “practically every position in the political calendar of jobs except two: these two being governor and constable.” Chief Justice Jefferson B. Browne, The Palm Beach Post 2, June 6, 1920.

[34] Jefferson Browne made an unsuccessful gubernatorial bid in 1908. His failure to win that election may have been due to his lack of name recognition in the northern cities of Jacksonville and Pensacola, but it was more likely due to his emphatic support of prohibition, which he publicly acknowledged would likely cost him votes. Jefferson Browne Declares He is for State Prohibition in Florida, The Tampa Tribune 1, 8, Apr. 24, 1908.

[35] Id.

[36] Emphasis added. Mr. Browne was quoting from the 1865 version of the Florida Constitution. See also Fla. Const. art. II, §3 (1968): “No person belonging to one branch shall exercise any powers appertaining to either of the branches unless expressly provided herein.” Notably, there is no substantive difference in the art. II language between the 1885 Florida Constitution (which governed in 1922) and the 1968 Florida Constitution, which governs today. It is this clause enshrined in the Florida Constitution, which is the basis of the separation of powers doctrine in Florida. The Florida Constitution stands in contrast with our federal Constitution, which contains no such explicit requirement.

[37] Platform of Jefferson B. Browne, The Tampa Tribune 3, Apr. 15, 1908.

[38] See note 36.

[39] Atl. Coast Line, 94 So. at 681, 682 (Fla. 1922) (emphasis added).

[40] Ranson, The American Mid-Term Elections of 1922 at 347-371, reciting the results of the mid-term election of 1922, which included at least 60 successful candidates claiming affiliation with the Farm Labor or Socialist parties.

[41] See Ross, A Muted Fury at 193-194, 211, discussing the goal of the February 1922 Chicago convention to “form a coalition that would help elect progressives to public office and influence public policy”; see also Railway Maintenance of Way Employes [sic] J., describing the policy positions of the CPPA; See also Ranson, The American Mid-Term Elections of 1922 at 299-300, describing the initial Chicago meeting of the CPPA in February 1922 and a second meeting of the CPPA following the November 1922 election discussing the number of “progress-minded” candidates remaining in Congress following the election and the number of “undesirable members” that had been defeated.

[42] Atl. Coast Line R. Co., 94 So. at 682.

[43] Id.

[44] Id.

[45] Id. at 683.

[46] The name “public official standing doctrine” was not actually used until Judge Rowe’s opinion in Santa Rosa Dunes.

[47] Dep’t of Revenue v. Markham, 396 So. 2d 1120, 1121 (Fla. 1981) (holding that the property appraiser lacked standing to challenge an administrative rule).

[48] Atl. Coast Line, 94 So. at 682.

[49] Id. at 685.

[50] Sunset Harbour Condo. Ass’n v. Robbins, 914 So. 2d 925, 935 (Fla. 2005) (Bell, J., concurring) (emphasis added). In actions that do not challenge the constitutionality of a statute, Florida courts recognize a public official’s right to seek a declaration of rights and obligations under the statute which the official claims he or she is “willing to perform his or her duties but is prevented from doing so by others.” See Reid v. Kirk, 257 So. 2d 3, 4 (Fla. 1972) (recognizing that standing is permitted when a public official is prevented “by others” from performing the duties that he or she is willing to perform).

[51] The Crossings at Fleming Island Community Development District v. Echeverri, 991 So. 2d 793, 797 (Fla. 2008).

[52] Island Resorts Investments, Inc. v. Jones, 189 So. 3d 917, 922 (Fla. 1st DCA 2016). For a recent example of how the “public funds” exception is applied, see
Sch. Bd. of Collier County v. Florida Dep’t of Educ., 279 So. 3d 281 (Fla. 1st DCA Aug. 29, 2019), rev. den., 2020 WL 1685138, at *1 (Fla. Apr. 7, 2020). In that case, the First District found school boards had standing to challenge legislation mandating how the boards must disburse public funds.

[53] James Madison, Federalist No. 47, The Federalist Papers 2234 (Coventry House Pub. 2015).

[54] Atl. Coast Line, 94 So. at 594; see also Barr v. Watts, 70 So. 2d 347, 350 (Fla. 1953) (holding it is a “well established rule that a ministerial officer, charged with the duty of administering a legislative enactment, cannot raise the question of its unconstitutionality without showing that he will be injured in his person, property, or rights by its enforcement”).

[55] Island Resorts concerned the taxation of raw land; Santa Rosa Dunes concerned the taxation of improved land subject to the condominium form of ownership. The author was counsel of record in both cases.

[56] Santa Rosa Dunes Owners Ass’n, Inc., 274 So. 3d 492 (emphasis added).

[57] Sch. Dist. of Escambia County, Florida v. Santa Rosa Dunes Owners Ass’n, Inc., 2020 WL 1542086, at *1 (Fla. Apr. 1, 2020); Jones v. Island Resorts Investments, Inc., 2016 WL 3961178, at *1 (Fla. July 21, 2016).

[58] Santa Rosa Dunes Owners Ass’n, Inc, 274 So. 3d at 496 (emphasis added).

[59] Id.

[60] Id., citing Atl. Coast Line, 94 So. 2d at 684 (citing Bd. of Public Instruction for Santa Rosa Cty. v. Croom, 57 Fla. 347, 48 So. 641 (1908)).

[61] Crossings at Fleming Island Community Development District, 991 So. 2d at 800.

[62] Atl. Coast Line, 94 So. at 683.

[63] Fla. Const. art. II, §3.

[64] It remains “binding authority” intended to “promote[] an important public policy of ensuring the orderly and uniform application of state law….” Crossings at Fleming Island Community Development District, 991 So. 2d at 797.

[65] Atl. Coast Line, 94 So. at 682; Barr, 70 So. 2d at 350.

[66] Platform of Jefferson B. Browne, The Tampa Tribune.


R. Todd HarrisR. Todd Harris is a partner with McDonald Fleming in Pensacola. He graduated magna cum laude from the Florida State University College of Law, and is a proud alumnus of the University of West Florida. He got his love of history from his father and friend, Jim Harris, who passed away in May 2020. This article is dedicated to him.