International Association of Firefighters Local S-20 v. State of Florida - Corrected Opinion ( 2018 )


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  •           Supreme Court of Florida
    ____________
    No. SC17-1434
    ____________
    INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL S-20, et
    al.,
    Petitioner,
    vs.
    STATE OF FLORIDA,
    Respondent.
    November 8, 2018
    CORRECTED OPINION
    PER CURIAM.
    We have for review the decision of the First District Court of Appeal in
    International Association of Firefighters Local S-20 v. State, 
    221 So. 3d 736
    (Fla.
    1st DCA 2017). After further consideration, we conclude that jurisdiction was
    improvidently granted. Accordingly, we hereby discharge jurisdiction and dismiss
    this review proceeding.
    It is so ordered.
    CANADY, C.J., and POLSTON, LABARGA, and LAWSON, JJ., concur.
    LEWIS, J., dissents with an opinion, in which PARIENTE and QUINCE, JJ.,
    concur.
    NO MOTION FOR REHEARING WILL BE ALLOWED.
    LEWIS, J., dissenting.
    I dissent from the majority’s decision to discharge jurisdiction in this case.
    The right to bargain collectively is a fundamental right. See art. I, § 6, Fla. Const.;
    Hillsborough Cty. Governmental Emps. Ass’n v. Hillsborough Cty. Aviation Auth.
    (Hillsborough), 
    522 So. 2d 358
    , 362 (Fla. 1988). The government of Florida
    belongs to the people. See Traylor v. State, 
    596 So. 2d 957
    , 963 (Fla. 1992)
    (explaining that “[e]ach right” in the Declaration of Rights is “a distinct freedom
    guaranteed to each Floridian against government intrusion” and “operates in favor
    of the individual, against [the] government”). The people of Florida have voted
    and voiced their desire with regard to how they want their government operated.
    An amendment to the Constitution, duly adopted, is the last
    expression of the will and intent of the law-making power and prior
    provisions inconsistent therewith or repugnant to the amendment are
    modified or superseded to the extent of inconsistency or repugnancy.
    State v. Div. of Bond Fin. of Dep’t of Gen. Servs., 
    278 So. 2d 614
    , 617-18 (Fla.
    1973) (citing Advisory Op. to Governor, 
    12 So. 2d 876
    (Fla. 1943); Sylvester v.
    Tindall, 
    18 So. 2d 892
    (Fla. 1944); Bd. of Pub. Instruction of Polk Cty. v. Bd. of
    Comm’rs of Polk Cty., 
    50 So. 574
    (Fla. 1909); Jackson v. Consol. Gov’t of City of
    Jacksonville, 
    225 So. 2d 497
    (Fla. 1969)). Article I, section 6 of the Florida
    Constitution should be considered the last expression of the will of the people. See
    
    id. at 617
    (“It is a fundamental rule of construction that, if possible, amendments to
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    the Constitution should be construed so as to harmonize with other constitutional
    provisions, but if this cannot be done, the amendment being the last expression of
    the will of the people will prevail.”). The Governor’s constitutional veto authority
    is the earlier of the two conflicting provisions, having existed as early as the
    Florida Constitution of 1838. Art. III, § 16, Fla. Const. (1838). Article III, section
    16 of the 1838 Constitution provided that any bill which the Governor objected to
    was to be returned to the house in which the bill originated, and that house would
    reconsider the bill. 
    Id. By contrast,
    the Florida Constitution did not provide public
    employees the right to bargain collectively until the 1968 constitutional revision.
    Art. I, § 6, Fla. Const. (1968).
    After the 1968 constitutional revision, the Legislature had an obligation to
    effectuate the fundamental right to collectively bargain. In Dade County
    Classroom Teachers’ Ass’n v. Ryan, 
    225 So. 2d 903
    , 906 (Fla. 1969), the Court
    held that it is essential that the Legislature “enact appropriate legislation setting out
    standards and guidelines and otherwise regulate the subject within the limits of
    said Section 6.” This Court has also held that if the Legislature failed to
    implement the rights in question the “Court [would], in an appropriate case, have
    no choice but to fashion such guidelines by judicial decree in such manner as may
    seem to the Court best adapted to meet the requirements of the constitution.” Dade
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    Cty. Classroom Teachers Ass’n v. Legislature of Fla., 
    269 So. 2d 684
    , 688 (Fla.
    1972).
    There can be no doubt that when any party, including a Governor, is
    involved in a direct dispute and at the same time maintains the power to act as final
    arbiter of the dispute through the power of veto—the impasse resolution process is
    subverted. See In re Murchison, 
    349 U.S. 133
    , 136 (1955) (“A fair trial in a fair
    tribunal is a basic requirement of due process.”). The old maxim remains true:
    “[N]o man is allowed to be a judge in his own cause; because his interest would
    certainly bias his judgment, and, not improbably, corrupt his integrity.” Caperton
    v. A.T. Massey Coal Co., 
    556 U.S. 868
    , 876 (2009) (quoting The Federalist No. 10,
    at 59 (J. Madison) (J. Cooke ed. 1961)). In this context, the use of veto authority,
    after the impasse has been resolved by the Legislature, allows the Governor to act
    as a judge in his own cause, thereby obstructing due process. See 
    id. (recognizing that
    no individual should be allowed to judge his or her own case given the
    inherent risk of bias in doing so). With the Governor holding the power to veto the
    Legislature’s decision resolving the impasse, the fundamental right of public
    employees to collectively bargain is rendered hollow. See Int’l Ass’n of
    Firefighters Local S-20 v. State (Local S-20), 
    221 So. 3d 736
    , 740 (Fla. 1st DCA
    2017) (Thomas, J., dissenting). In acting as the third-party decision maker, the
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    Legislature’s decision should be implemented in a process that does not include
    executive branch veto.
    The Legislature has an obligation to the people of Florida to create a system
    that shields fundamental rights against due process violations. The Legislature
    cannot dodge the issue of a flawed system as merely “subject to politics.”
    Fundamental rights must be balanced to exist and be protected within a
    constitutional framework. It is the responsibility of the Legislature to create a
    constitutional structure that would not leave any party that was a participant in the
    dispute as the final decider. This may not be an easy task; however, it is a
    necessary task nonetheless to protect fundamental rights as presently contemplated.
    Within these narrow circumstances the Legislature may consider a number
    of alternatives including the implementation of a state compelling interest test in
    which the Governor would be required to demonstrate a compelling state interest
    to sustain a veto of a legislative resolution of an impasse. See Local S-20, 
    221 So. 3d
    at 740-41 (Thomas, J., dissenting) (“[O]nce the Legislature has ruled in the
    public employees’ favor and against the Governor, it cannot be reconciled with
    Article I, section 6 of the Florida Constitution to allow the Governor to render the
    Legislature’s decision a nullity through the veto authority.”). In recognizing that
    public employees have the right to collectively bargain as a fundamental right, the
    Legislature may decide that this fundamental right should be subject to official
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    abridgment only upon a showing of a compelling state interest. Hillsborough, 
    522 So. 2d 358
    . Nevertheless, members of the Legislature cannot throw up their hands
    and simply say “oh well.” Democracy can be dangerous and full of complexities;
    and, while the overall structure remains in concept, the moving parts move as
    directed by the people.
    For the reasons set forth above, I dissent.
    PARIENTE and QUINCE, JJ., concur.
    Application for Review of the Decision of the District Court of Appeal – Direct
    Conflict of Decisions
    First District - Case No. 1D16-618
    Tobe M. Lev and Richard Siwica of Egan, Lev & Siwica, P.A., Orlando, Florida,
    for Petitioner
    Pamela Jo Bondi, Attorney General, and Amit Agarwal, Solicitor General,
    Tallahassee, Florida,
    for Respondent
    Mark A. Touby and Richard A. Sicking of Touby, Chait & Sicking, P.L., Coral
    Gables, Florida,
    for Amicus Curiae Florida Professional Firefighters, Inc., International
    Association of Firefighters, AFL-CIO
    Thomas W. Brooks of Meyer, Brooks, Demma & Blohm, P.A., Tallahassee,
    Florida; and G. "Hal" Johnson, Florida Police Benevolent Association,
    Tallahassee, Florida,
    for Amicus Curiae Florida Police Benevolent Association, Inc.
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