author: SUNDBERG, Justice. ENGLAND, Chief Justice, SUNDBERG, Justice.

text:
    Reubin O’D. ASKEW et al., Appellants, v. CROSS KEY WATERWAYS et al., Appellees. Reubin O’D. ASKEW et al., Appellants, v. POSTAL COLONY CO., INC., et al., Appellees.
    Nos. 52251, 52252.
    Supreme Court of Florida.
    Nov. 22, 1978.
    Rehearing Denied Feb. 15, 1979.
    Robert L. Shevin, Atty. Gen., and James D. Whisenand, Deputy Atty. Gen. and Martin S. Friedman, Asst. Atty. Gen., Tallahassee, for appellants.
    Murray H. Dubbin and Evan Langbein of Dubbin, Schiff, Berkman & Dubbin, Charles H. Netter, Miami, and Tittle & Tittle, P.A., Tavernier, for Cross Key Waterways.

      Richard W. Ervin, Joseph C. Jacobs and Robert J. Angerer of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for City of Key West.
    E. Snow Martin of Martin & Martin, Lakeland, for Postal Colony Co., Inc.
    Richard E. Nelson of Nelson, Hesse, Cyril, Weber & Sparrow, Sarasota, amicus curiae, for Sarasota County.
    William L. Earl and Sandra R. Scott of Peeples, Earl & Blank, Miami, amicus curiae, for William L. Earl.
    Parker D. Thomson and Janice S. Burton of Paul & Thomson, Alan Milledge and Earl G. Gallop of Milledge & Hermelee, and Joseph Z. Fleming of Fleming & Neuman, Miami, amicus curiae, for Florida Audubon Society and League of Women Voters.
    Bruce C. Starling, Gen. Counsel, and Nancy G. Linnan, Asst. Gen. Counsel, Tallahassee, amici curiae, for Reubin O’D. Askew, Governor, State of Florida.
   SUNDBERG, Justice.

We deal today with the constitutionality of the provisions of Section 380.05(1), Florida Statutes (1975), for designation of areas of critical state concern by use of the criteria stated in Section 380.05(2)(a) and (b), Florida Statutes (1975). The issue reaches us by appeal from two separate decisions of the District Court of Appeal, First District, which have been consolidated for review by this Court. Because each case was ultimately disposed of upon the constitutional invalidity of the aforementioned statutory provisions jurisdiction reposes in this Court pursuant to Article V, Section 3(b)(1), Florida Constitution.

Responding to the policy and mandate contained in Article II, Section 7, Florida Constitution, in 1972 the legislature enacted the “Florida Environmental Land and Water Management Act,” Chapter 72-317, Laws of Florida, Chapter 380, Florida Statutes. Section 380.05(l)(a) of the enactment empowers the Division of State Planning to recommend areas of critical state concern to the Governor and cabinet acting as the Administration Commission. In its recommendation the Division of State Planning must designate the boundaries of the proposed area of critical state concern, explain the reasons for its conclusion that the area is of critical concern to the state or region, the dangers which would result from uncontrolled or inadequate development, of the area, and the advantages to be gained from the development of the area in a coordinated manner. In addition, the Division of State Planning recommends specific principles for guiding the development of the proposed area.

Section 380.05(2), Florida Statutes (1975), enunciates the criteria which the Division of State Planning shall utilize in determining whether to recommend designation of a particular area as one of critical state concern:

(2) An area of critical state concern may be designated only for:
(a) An area containing, or having a significant impact upon, environmental, historical, natural, or archaeological resources of regional or statewide importance.
(b) An area significantly affected by, or having a significant effect upon, an existing or proposed major public facility or other area of major public investment.
(c) A proposed area of major development potential, which may include a proposed site of a new community, designated in a state land development plan.

Prior to submitting a recommendation with respect to an area of critical state concern to the Administration Commission, the Division of State Planning must give notice to all local governments and regional planning agencies included within the proposed boundaries, including any notice required by Chapter 120, Florida Statutes (1975), the Administrative Procedure Act, the provisions of which govern the actions taken by the Division of State Planning and the Administration Commission under Chapter 380. Section 380.05(4) and (8), Florida Statutes (1975); Section 120.72, Florida Statutes (1975).

Within 45 days after receiving the recommendations of the Division of State Planning, the Administration Commission must either reject the recommendations ^or adopt them with or without modification. Thereafter, by rule, the Administration Commission designates the area of critical state concern and approves the principles for guiding development of the designated area. Section 380.05(l)(b), Florida Statutes (1975). The Administration Commission is statutorily prohibited from designating more than five percent, in the aggregate, of the land within the state (approximately 1.8 million acres) as an area of critical state concern. Section 380.05(17), Florida Statutes (1975).

Section 380.05(5) provides that:

After the adoption of a rule designating an area of critical state concern the local government having jurisdiction may submit to the state land planning agency its existing land development regulations for the area, if any, or shall prepare, adopt and submit new or modified regulations, taking into consideration the principles [for guiding development] set forth in the rule designating the area as well as the factors that it would normally consider.

Subsection (7) of Section 380.05 directs the Division of State Planning to provide technical assistance to the local government in the preparation of the proposed land development regulations. If the Division of State Planning determines that the land development regulations submitted by the local government comport with the principles for guiding development, it shall by rule approve the locally-promulgated land development regulations. Section 380.05(6). The regulations are not effective until the Division of State Planning’s rule approving them becomes effective which, under Section 120.54(11), Florida Statutes (1975), is 20 days after it is filed with the Secretary of State.

If the relevant local government fails to propose land development regulations within six months of adoption of the rule designating the area of critical state concern or, if such regulations have been proposed but the Division of State Planning concludes that they do not comply with the principles for guiding development for the' area, within 120 days thereafter the Division of State Planning must recommend land development regulations to the Administration Commission. Section 380.05(8). The Administration Commission is allowed forty-five days after the receipt of recommended regulations, if any, from the Division of State Planning within which to reject the same or adopt them with or without modification. The Administration Commission must establish the land development regulations, by rule, within the forty-five day period as well. This rule must specify to what extent the regulations will supersede or supplement local land development regulations. Section 380.05(8). Although the regulations are administered by the local government, the Division of State Planning may initiate judicial proceedings to compel their enforcement if it concludes that local administration is inadequate. Sec- ■ tion 380.05(8) and (9). Chapter 380 possesses the flexibility to conform to changed needs and conditions of a designated area of critical state concern by permitting the local government to propose new land development regulations after the initial regulations have been approved by the Division of State Planning or the Administration Commission. Section 380.05(10). It is essential under the statutory scheme that land development regulations become effective within twelve months after the adoption of the rule designating the area of critical state concern. If this condition is not fulfilled, the designation terminates and the area may not be redesignated for a period of one year after the termination. Section 380.05(12).

The Act affects regulation of virtually all development in an area of critical state concern: all building, mining, and changes in the use or appearance of land, water and air and appurtenant structures; material increases in the density of its use; alteration of shores and banks; drilling; structural demolition; clearing adjunct to construction; and deposit of waste or fill. Excepted are work by road agencies and other utilities; structural maintenance affecting only the interior or the color or exterior decoration of a structure; the use of structures for customary dwelling purposes; changes of usage within the same regulated class of use; changes in ownership; and changes in rights of access, riparian rights, easements and covenants affecting rights and land. Section 380.04.

The controversy before us results from actions taken by the Administration Commission of the Department of Administration in designating the Green Swamp area of critical state concern and the Florida Keys area of critical state concern and, in the case of the former, adopting land development regulations.

Green Swamp Area of Critical State Concern.

The Administration Commission adopted Chapter 22F-5, Florida Administrative Code, on July 16, 1974, which rule designated the Green Swamp area of critical state concern and adopted principles for guiding development related thereto. After hearings on proposed land development regulations for the area, the Administration Commission on June 17, 1975, adopted amended land development regulations. Subsequent to that date a challenge to the land development regulations was filed but was denied by a hearing officer on June 27, 1975. On June 30, 1975, the land development regulations were filed with the Secretary of State as Chapters 22F-6 and 22F-7, Florida Administrative Code. However, it was brought to the attention of the Administration Commission that Section 120.54(11), Florida Statutes (1975), which provides that regulations are “effective” twenty days after they are filed, might preclude the land development regulations from becoming effective within twelve months of adoption of the rule designating the area of critical state concern as mandated by Section 380.05(12), Florida Statutes (1975). Apprehensive concerning the effect of Section 120.54(11) upon the efficacy of the regulations, the Administration Commission met on July 15, 1975, declared an emergency pursuant to Section 120.54(8)(a), Florida Statutes (1975), and approved land development regulations identical to Chapters 22F-6 and 22F-7. These regulations were filed as emergency rule Chapters 22 FER-75-1 through 30, Florida Administrative Code. Individual and corporate parties to the rulemaking proceedings petitioned the district court for review of the described final agency rule-making action. Although the petitioners attacked the land development regulations on constitutional and several statutory grounds, the district court disposed of the case on a single statutory issue and expressly reached none other. The court held that the emergency rules adopting the land development regulations were not effective because there was no demonstrated “immediate danger to the public health, safety, or welfare” as required by Section 120.54(8)(a). It concluded further that the land development regulations adopted as Chapters 22F-6 and 22F-7 did not become effective within the time imposed by Section 380.-05(12) and, therefore, the designation made by Chapter 22F-5 terminated.

On petition for rehearing the Administration Commission raised for the first time the issue of the intervening rule challenge under Section 120.54(3). However, the court declined to consider the issue because of Florida Appellate Rule 3.14(b) and because of its decision in Cross Key Waterways, Inc. v. Askew, supra, holding unconstitutional the provision by Section 380.-05(1) for designation of areas of critical state concern through use of the criteria stated in Section 380.05(2)(a) and (b). Thus, the fundamental constitutional ground avoided in the principal opinion was the basis for disposition of the case on rehearing.

Florida Keys Area of Critical State Concern

On March 3, 1975, the Division of State Planning issued its report to the Administration Commission recommending that a substantial portion of the Florida Keys be declared an area of critical state concern. The Administration Commission held a public meeting in Key West on March 28, 1975, to receive comment on the recommendation of the Division of State Planning. The meeting was conducted in accordance with Section 120.54, Florida Statutes (1975), related to rulemaking procedures, and revisions in the recommendation of the Division of State Planning were proposed. Subsequently, “issue papers” were prepared and submitted by the Division of State Planning in response to questions raised at the March 28, 1975, meeting. After an oral request that the proceedings held on March 28, 1975, be conducted in accordance with the provisions of Section 120.57, Florida Statutes (1975), on April 14,1975, appellees filed a written petition requesting that further proceedings scheduled for the following day be conducted in the formal manner prescribed by Section 120.57. Appellees asserted that their substantial interests would be affected and that a rulemaking proceeding pursuant to Section 120.54 did not provide adequate opportunity to protect those interests. At the proceedings conducted on April 15, 1975, the petition for a Section 120.57 hearing was denied due to the purported failure of appellees to establish that proceedings pursuant to Section 120.54 were inadequate to protect their interests. At the close of this meeting, the Administration Commission approved the proposed rule designating virtually all of the Keys as an area of critical state concern. On April 25, 1975, the rule designating the area of critical state concern together with accompanying principles for guiding development were filed with the Secretary of State and ultimately published as Chapter 22F-8, Florida Administrative Code.

Timely petitions for review of this agency action were lodged with the District Court of Appeal, First District, by appellees. In ruling upon a motion to dismiss, the district court confirmed the standing of appellees to seek review of the agency action.

As mentioned above the district court held that the Section 380.05(2)(a) and (b) standards for exercise of the Section 380.-05(1) power to designate areas of critical state concern are inadequate and that the delegation consequently offends Article II, Section 3, Florida Constitution. Accordingly, the court quashed Rule 22F-8. However, the district court expressly resolved all other issues raised, including the form of the proceedings, adversely to appellees.

The Consolidated Cases

While numerous issues are raised in these consolidated appeals we, like the District Court of Appeal, First District, find the issue of the constitutionality of the delegation of power*to the Administration Commission to be dispositive. Therefore, except as otherwise herein expressly mentioned, we refrain from passing upon any other issues raised.

At contest here are the competing philosophies which underlie two provisions of our fundamental document of government and the attempt by the legislature to accommodate those philosophies through the enactment of Section 380.05(2)(a) and (b), Florida Statutes (1975). Article II, Section 7, Florida Constitution, enunciates the policy of the State to conserve and protect its natural resources and scenic beauty. Nonetheless, in implementing this policy due regard must be had for the admonition of Article II, Section 3, Florida. Constitution:

Branches of government. — 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.

Appellants urge two propositions upon us. First, that the provisions of Section 380.-05(2)(a) and (b) set forth adequate criteria for exercise of the power delegated by Section 380.05(1) when measured against the case law which construes the operation of Article II, Section 3. This argument is bolstered by the decisions from this Court which recognize that the specificity of standards and guidelines may depend upon the subject matter dealt with and the degree of difficulty involved in articulating finite standards. See, e.g. Straughn v. K & K Land Management, Inc., 326 So.2d 421 (Fla.1976); State Dept. of Citrus v. Griffin, 239 So.2d 577 (Fla.1970). Second, it is asserted that the modern trend in administrative law is to relax the doctrine of unlawful delegation of legislative power in favor of an analysis which focuses upon the existence of procedural safeguards in the administrative process as opposed to standards enunciated by the legislature. See Butler v. United Cerebral Palsy of Northern Ky., Inc., 352 S.W.2d 203 (Ky.1961); Warren v. Marion County, 353 P.2d 257 (Or.1960); Barry and Barry, Inc. v. State of Washington Dept. of Motor Vehicles, 81 Wash.2d 155, 500 P.2d 540 (1972); Schmidt v. Dept. of Resource Development, 39 Wis.2d 46, 158 N.W.2d 306 (1968); K. Davis, Administrative Law of the Seventies, § 2.04, at 30 (1976). Appellants maintain that the broad statement of policy contained in Sections 380.-05(1) and 380.05(2)(a) and (b) coupled with the administrative safeguards imposed by Chapter 120, Florida Statutes (1975), alleviates any objection that the Administration Commission will act arbitrarily or capriciously in performing the function assigned by the legislature.

Dealing with these propositions in the order presented, we first conclude that we must concur with the able opinion of the District Court of Appeal, First District, in Cross Key Waterways v. Askew insofar as it finds the standards and guidelines of Section 380.05(2)(a) and (b) to be deficient when assessed in light of prior case law. See D’Alemberte v. Anderson, 349 So.2d 164 (Fla.1977); Lewis v. Bank of Pasco County, 346 So.2d 53 (Fla.1977); Sarasota County v. Barg, 302 So.2d 737 (Fla.1974); Conner v. Joe Hatton, Inc., 216 So.2d 209 (Fla.1968); State v. Atlantic Coast Line Ry., 56 Fla. 617, 47 So. 969 (1908). A corollary of the doctrine of unlawful delegation is the availability of judicial review. In the final analysis it is the courts, upon a challenge to the exercise or nonexercise of administrative action, which must determine whether the administrative agency has performed consistently with the mandate of the legislature. When legislation is so lacking in guidelines that neither the agency nor the courts can determine whether the agency is carrying out the intent of the legislature in its conduct, then, in fact, the agency becomes the lawgiver rather than the administrator of the law.

The criteria for designation of an area of critical state concern set forth in Section 380.05(2)(a) and (b) are constitutionally defective because they reposit in the Administration Commission the fundamental legislative task of determining which geographic areas and resources are in greatest need of protection. As pointed out by Judge Smith below, the procedure envisioned by Sections 380.05(1) and (2) makes it impossible for a reviewing court to ascertain whether the priorities recognized by the Administration Commission comport with the intent of the legislature:

The greater deficiency of Section 380.-05(2), subsection (a), is that it does not establish or provide for establishing priorities or other means for identifying and choosing among the resources the Act is intended to preserve. That subsection lacks the specificity of the Big Cypress designation, the predictability of a legislatively approved comprehensive plan which confines subsection (c) criteria, the rule standards required for Section 380.10 identification of developments of regional impact, and any other standards for the necessary choice. The Act treats alike, as fungible goods, disparate categories of environmental, historical, natural and archaeological resources of regional or statewide importance and all of Florida’s manifold resources within those vast categories. Up to the acreage limit, the Commission is empowered to supersede as it chooses the local governments regulating development in historic Pensacola or St. Augustine, or at the shores of the Atlantic and Gulf of Mexico to a depth of a thousand feet, or in all acreage on the Suwannee and St. Johns and their tributaries or, indeed, in all the Florida Keys. If Cedar Key, Ybor City, Palm Beach and the path of the King’s Road are found to be historic resources of satisfactory importance, they too may be designated. Subsection (a) reaches beyond those areas to include, as similarly eligible for designation, areas which for unstated reasons “impact” valued resources elsewhere. Subsection (b) expands the choice to include areas which in unstated ways affect or are affected by any “major public facility” which is defined in Section 380.-031(10), or any “major public investment,” which is not.

351 So.2d at 1069 (footnotes omitted).

We emphasize that it is not the legislature’s use of the phrases “containing, or having a significant impact upon, environmental, historical, natural, or archaeological resources of regional impact” nor “significantly affected by, or having a significant effect upon, an existing or proposed major public facility or other area of major public investment” which faults the legislation. Although the Court in Sarasota County v. Barg, supra, invalidated an act which utilized the terms “undue or unreasonable” dredging or filling and “unreasonable” destruction of natural vegetation in a manner which would be “harmful or significantly contribute” to air and water pollution, such quantitative assessments by an administrative agency are not necessarily prohibited. As suggested by the district court of appeal such “approximations of the threshold of legislative concern” are not only a practical necessity in legislation, but they are now amenable to articulation and refinement by policy statements adopted as rules under the 1974 Administrative Procedure Act, Chapter 120, Florida Statutes. The benefits of the current version of Chapter 120 were not available at the time of the Barg decision. The deficiency in the legislation here considered is the absence of legislative delineation of priorities among competing areas and resources which require protection in the State interest.

We are told by appellants that the standards in Section 380.05(2)(a) and (b) are no less definite than the guidelines of Sections 501.204 and 501.205, Florida Statutes (1975), which were upheld against a similar constitutional attack in Dept. of Legal Affairs v. Rogers, 329 So.2d 257 (Fla.1976). The sections in question made unlawful “unfair . acts or practices in the conduct of any trade or commerce” and provided for the adoption by the cabinet of “rules . which prohibit with specificity acts or practices that violate this part . . . ” However, the legislation in question contained the admonition that in construing the Act great weight and consideration should be given to the interpretation of similar terms in the Federal Trade Commission Act [15 U.S.C. 45(a)(1)] by the Federal Trade Commission and the federal courts. Furthermore, the rules promulgated by the cabinet are required to be consistent with the rules, regulations, and decisions of the Federal Trade Commission and the federal courts in interpreting the provisions of the federal act. Appellants stress the language of Mr. Justice England’s concurring opinion, in which this author joined, that:

[Florida's declaration of commercial policy need not be made rigid to the point of ineffectiveness, but may be “fleshed out” by administrative action to meet changing circumstances within our borders.

329 So.2d at 269.

However, for an administrative agency to “flesh out” an articulated legislative policy is far different from that agency making the initial determination of what policy should be. In the cases under review the Administration Commission has in fact exercised the policy role in the first instance of determining which areas of this State and the resources therein are of critical state concern. It has then proceeded, pursuant to the other provisions of Section 380.05, to promulgate principles for guiding development and to adopt or approve land development regulations. Under the provisions of Section 380.05, the Administration Commission “fleshes out” what it has in the first instance conceived. In the words of Justice Whitfield in State v. Atlantic Coast Line Ry., supra, the function of the Administration Commission under Section 380.-05(1) and (2)(a) and (b) involves the exercise of primary and independent discretion rather than the determination “within defined limits, and subject to review, [of] some fact upon which the law by its own terms operates . . . 47 So. at 972. In contrast, by The Big Cypress Conservation Act of 1973, Section 380.055, Florida Statutes (1975), the legislature conceived the areas of critical state concern and left to the Division of State Planning and the Administration Commission the task of “fleshing out” through adoption of land development regulations.

Our research in other jurisdictions fails to disclose one instance in which the legislative branch has unconditionally delegated to an agency of the executive branch the policy function of designating the geographic area of concern which will be subject to land development regulation by the agency. For example, in CEEED v. California Coastal Zone Conservation Commission, 43 Cal.App.3d 306, 118 Cal.Rptr. 315 (Dist.Ct. App.1974), the California court sustained against an unlawful delegation attack broad powers of regional commissions to issue development permits within the Cali-' fornia coastal zone designated by the Coastal Conservation Act of 1972. Any development in the designated coastal area was subject to permitting by an appropriate regional commission pending formulation and submission for adoption by the legislature of a comprehensive California Coastal Zone Conservation Plan. The court approved the standard in the Act, which required a finding before permitting, that “ . . . the development will not have any substantial adverse environmental or ecological effect” and that “ . . . the development is consistent with, the findings and declarations set forth in Section 27001 and with the objectives set forth in Section 27302.” It dealt with the delegation issue in the following language:

The constitutional doctrine prohibiting delegation of legislative power rests on the premise that the Legislature may not abdicate its responsibility to resolve the “truly fundamental issues” by delegating that function to others or by failing to provide adequate directions for the implementation of its declared policies. (Citations omitted) Consequently, where the Legislature makes the fundamental policy decision and delegates to some other body the task of implementing that policy under adequate safeguards, there is no violation of the doctrine. (Citations omitted)
The “substantial adverse environmental or ecological effect” standard is more specific than the broad “health, safety, or general welfare” guideline upheld in Candlestick and the cases cited above. [Candlestick Properties, Inc. v. San Francisco Bay CND Commission, 11 Cal.App.3d 557, 89 Cal.Rptr. 897 (Dist.Ct.App.1970)]. Although application of the standard calls for the exercise of judgment and discretion, by the very nature of the legislative goals, considerable discretion must of necessity be vested in the Commission. As the court in Friends of Mammoth v. Board of Supervisors, 8 Cal.3d 247, 271, 104 Cal.Rptr. 761, 777, 502 P.2d 1049, 1065, said of the “significant effect on the environment” phrase in the California Environmental Quality Act: To some extent this is inevitable in a statute which deals, as the EQA must, with questions of degree.” The statutory criteria to be observed by the Commission and the regional commissions in carrying out the tasks delegated to them clearly satisfy constitutional requirements. The fact that the Commission is required to weigh complex factors in determining whether a development will have a substantial adverse environmental or ecological effect does not, as plaintiffs charge, mean that unbridled discretion has been conferred on it. A statute empowering an administrative agency to exercise a judgment of a high order in implementing legislative policy does not confer unrestricted powers. (Citations omitted)

118 Cal.Rptr. at 329-330.

The language of the California court is not dissimilar to that used by Justice Whitfield in State v. Atlantic Coast Line By., supra. However, the striking difference between the California Act and the statutory scheme here under consideration lies in the fact that the California Act geographically circumscribed by its own terms both the coastal zone and the area within the coastal zone within which the regional commissions were authorized to require development permitting. Furthermore, the permitting function was an interim measure pending adoption by the legislature of a comprehensive Coastal Zone Conservation Plan.

In J. M. Mills, Inc. v. Murphy, 116 R.I. 54, 352 A.2d 661 (1976), the Rhode Island Supreme Court dealt with the validity of the Fresh Water Wetlands Act. The Act provides for regulation of all fresh water wetlands. The Act defines its geographical jurisdiction, declares the state policy with regard to wetlands, and requires the approval of both the Director of the Department of Natural Resources and the municipality in which the land is located before wetlands may be altered. Plaintiff landowner sought a declaratory judgment challenging the functions vested in the Director and the municipalities as being an unlawful delegation of legislative power. On appeal by the plaintiff from an adverse decision in the trial court, the supreme court affirmed. After noting that the nondelegation doctrine has been relaxed of late, the court reasoned that the adequacy of legislative standards could best be measured against the intended purpose of the legislation. Having enunciated these general principles the court stated:

With these general principles in mind, we proceed to consider the validity of a delegation of authority to the director of the Department of Natural Resources to disapprove applications to alter fresh water wetlands., Section 2-1-21 requires anyone who would alter the character of a wetland to obtain the approval of the director and fixes the governing standard as the “best public interest.” The plaintiffs argue that this is not a meaningful standard. In response to this contention, we first note that the director is given jurisdiction over only a very limited area, wetlands. The term “wetlands” is precisely defined in 2-1-20. In a previous case where this court found a valid delegation of authority to the Blackstone Valley Sewer District Commission, City of Central Falls v. Halloran, 94 R.I. 189, 179 A.2d 570 (1962), we placed great weight on the fact that the administrative agency was given discretion to act only in a well-defined geographical area. Here, also, the scope of administrative authority is clearly confined.

352 A.2d at 666 (emphasis supplied).

It is apparent that the Rhode Island court was materially influenced by the fact that the administrative agency was granted discretion to act only in a geographical area well-defined by the legislature.

To the same effect is the case of Toms River Affiliates v. Dept. of Environmental Protection, 140 N.J.Super. 135, 355 A.2d 679 (1976), upholding against constitutional attack the New Jersey Coastal Area Facility Review Act. The Act establishes boundaries for the “coastal area” of the state and declares that this area constitutes “an exceptional, unique, irreplaceable and delicately balanced physical, chemical and biologically acting and interacting natural environmental resource . . .” The State Department of Environmental Protection is designated as the agency to administer the Act and is granted authority to adopt rules and regulations to effectuate its purposes. After declaring the purposes of the legislation, the Act proceeds to list the facilities subject to its provisions. In denying the challenge that the Act does not provide adequate standards for its administration, the New Jersey court approved some rather nonspecific standards when coupled with procedural safeguards designed to insure against unreasonable and unwarranted administrative action. Nonetheless, the geographic area to be regulated by the administrative agency was discreetly defined by the Act.

In 1974, Massachusetts enacted St.1974, c. 637, “An act protecting land and water on Martha’s Vineyard” which is patterned after The American Law Institute, Model Land Development Code. ALI, A Model Land Development Code, Art. 7 (1976). Section 380.05, Florida Statutes (1975), was likewise modeled after an earlier draft of Article 7 of the American Law Institute Model Code. The Martha’s Vineyard Act was the subject of litigation in Island Properties, Inc. v. Martha’s Vineyard Commission, 361 N.E.2d 385 (Mass.1977). The test in this case did not touch upon the subject of unlawful delegation and, therefore, the decision is not persuasive in the instant cases. It is instructive to note, however, that in implementing the ALI model code the Massachusetts legislature expressly delineated the geographical area of Martha’s Vineyard within which the Martha’s Vineyard Commission is authorized to designate districts of critical planning concern. Under the terms of the Massachusetts act the commission was charged with developing standards and criteria for identification of areas of critical planning concern within the boundaries of the island, which standards and criteria were subject to and received the approval of the Secretary of Communities and Development. The Massachusetts scheme, then, is similar to that adopted by the Florida Legislature for the “Big Cypress Area” (Section 380.055) insofar as establishment of the geographic perimeters in which the agency may exercise its discretion is concerned.

The second prong of appellants’ argument is based upon a thesis for delegation of legislative power developed and espoused by Professor Kenneth Culp Davis of the University of Chicago College of Law. See Davis, Administrative Law of the Seventies, supra. Professor Davis maintains that there should be a shift in emphasis from legislatively imposed standards for administrative action to procedural safeguards in the administrative process. He supports his rationale by citation to federal decisions as well as decisions from a minority of state court jurisdictions. His premises are that (1) strict adherence to the nondelegation doctrine would stultify the administrative process; (2) the doctrine, in fact, has been used as a label to invalidate legislation of which courts disapprove without any rational distinction between standards approved and those disapproved; and (3) the danger of arbitrary or capricious administrative action is best met through procedural due process safeguards in the administrative process.

The Davis view is probably best demonstrated in the case of Barry & Barry, Inc. v. State of Washington, Dept. of Motor Vehicles, supra, wherein the Washington court stated:

We are convinced and have no hesitancy in saying that the strict requirement of exact legislative standards for the exercise of administrative authority has ceased to serve any valid purpose. In addition to lacking purpose, the doctrine in several respects impedes efficient government and conflicts with the public interest in administrative efficiency in a complex modern society.
Second, requiring the legislature to lay down exact and precise standards for the exercise of administrative authority destroys needed flexibility. . Finally, a strictly construed standards doctrine is logically unsound and legally meaningless. The needs and demands of modern government require the delegation of legislative power without specific guiding standards . . . We think that it is time to abandon the notion that the presence or absence of vague verbal-isms like “public interest” or “just and reasonable” make all the difference between valid legislation and unlawful delegation.

500 P.2d 540, at 543 (emphasis in original).

The court went on to say that the focus should be on administrative safeguards and administrative standards. Relying upon United States Supreme Court decisions in reaching its result, the court concluded that the Washington constitution requires no different result than that reached under the United States Constitution:

It may be argued that whatever the freedom of the federal courts to ignore the requirement of precise legislative standards for delegated authority, its continued existence is mandated in the state of Washington by Const, art. 2, § 1 (amendment 7), which provides that “[t]he legislative authority of the state of Washington shall be vested in the legislature . . . ” However, there is a similar provision in U.S.Const. art. 1, § 1: “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States . . . ” The Supreme Court of the United States has not regarded this provision as prohibitory in upholding the delegations of legislative authority without meaningful standards in the above-mentioned decisions in American Trucking Associations [American Trucking Associations, Inc. v. Atchison, Topeka & Santa Fe Railway, 387 U.S. 397, 87 S.Ct. 1608, 18 L.Ed.2d 847 (1967)], and Southwestern Cable Co. [U. S. v. Southwestern Cable Co., 392 U.S. 157, 88 S.Ct. 1994, 20 L.Ed.2d 1001 (1968)].
In our judgment, these provisions of the Washington State and United States constitutions mean only that legislative power is delegated initially and fundamentally to the legislative bodies. We believe that one of the legislative powers granted by these provisions is the power to determine the amount of discretion an administrative agency should exercise in carrying out the duties granted to it by the legislature. To construe these provisions as confining the exercise of legislative power to the legislative bodies, would be to read them as limitations of power rather than as grants of power. We may assume that if the framers had intended to so limit the power of the legislative bodies, they would have done so expressly, rather than by implication.

500 P.2d at 544 (emphasis in original). It should be noted that Article II, Section 3, Florida Constitution, contrary to the Constitutions of the United States and the State of Washington, does by its second sentence contain an express limitation upon the exercise by a member of one branch of any powers appertaining to either of the other branches of government. While other jurisdictions which subscribe to the Davis thesis have constitutional provisions similar to Article II, Section 3, Florida Constitution, the precise issue of the meaning of the limiting language is not discussed.

Although the Davis view is an entirely reasonable one as demonstrated by its adoption in the federal courts and a minority of state jurisdictions, nonetheless, it clearly has not been the view in Florida. See Davis, Administrative Law of the Seventies, supra, at 32. Should this Court, then, accept the invitation of appellants to abandon the doctrine of nondelegation of legislative power which is not only firmly embedded in our law, but which has been so continuously and recently applied? See, e. g., D’Alemberte v. Anderson, Lewis v. Bank of Pasco County, supra. We believe stare decisis and reason dictate that we not.

Regardless of the criticism of the courts’ application of the doctrine, we nevertheless conclude that it represents a recognition of the express limitation contained in the second sentence of Article II, Section 3 of our Constitution. Under the fundamental document adopted and several times ratified by the citizens of this State, the legislature is not free to redelegate to an administrative body so much of its lawmaking power as it may deem expedient. And that is at the crux of the issue before us. Appellants argue that Section 380.05 requires that all land development regulations be consistent with the principles for guiding development which are adopte'd contemporaneously with the designation of an area of critical state concern and, therefore, there can be no abuse in the process. We concur that the provisions of Section 380.05 coupled with Chapter 120, Florida Statutes, are calculated to assure procedural due process. Nonetheless, the standard by which land development regulations are to be measured is not a standard articulated by the legislature but one determined by the Administration Commission through formulation of principles for guiding development. In short the primary policy decision of the area of critical state concern to be designated as well as the principles for guiding development in that area are the sole province of an administrative body. From that determination all else follows. This does not comport with the dictates of State v. Atlantic Coast Line Ry. Co., supra, and its progeny. Flexibility by an administrative agency to administer a legislatively articulated policy is essential to meet the complexities of our modern society, but flexibility in administration of a legislative program is essentially different from reposing in an administrative body the power to establish fundamental policy.

In our consideration of this issue, we have not overlooked the decision of the United States Supreme Court in Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978), cited by appellants as supplemental authority. This decision deals with the designation of Grand Central Terminal as a “landmark” by the Landmarks Preservation Commission under New York City’s Landmarks Preservation Law. Neither in the state courts nor in the United States Supreme Court was the issue of unlawful delegation raised or considered. The issues decided were whether the application of the Landmarks Preservation Law had taken the. owners’ property without just compensation in violation of the Fifth and Fourteenth Amendments and arbitrarily deprived them of their property without Due Process of Law in violation of the Fourteenth Amendment. Hence, the Penn Central case is inapposite.

It is submitted by appellants that the provisions of Section 11.60(2)(i), Florida Statutes (1977), will cure any lack of adequate standards or guidelines in the subject legislation. By Section 11.60(2)(i), the joint Administrative Procedures Committee of the legislature is given standing to seek review in the courts of this State of the validity or invalidity of any administrative rule. However, this offers no panacea because the ability of the committee to maintain proceedings for review of a rule does not make binding upon the courts the view asserted by the committee. It is still necessary for the court to measure the validity or invalidity of the administrative action against the standards and guidelines articulated in the legislation under which the agency acts.

Accordingly, until the provisions of Article II, Section 3 of the Florida Constitution are altered by the people we deem the doctrine of nondelegation of legislative power to be viable in this State. Under this doctrine fundamental and primary policy decisions shall be made by members of the legislature who are elected to perform those tasks, and administration of legislative programs must be pursuant to some minimal standards and guidelines ascertainable by reference to the enactment establishing the program. The criteria contained in Section 380.05(2)(a) and (b), Florida Statutes (1975), do not comply with this constitutional imperative.

Our decision today need not impair the ability of our state government to protect the resources and facilities described in Section 380.05(2)(a) and (b), however. In complying with the policy and mandate of Article II, Section 7, Florida Constitution, the legislature need only exercise its constitutional prerogative and duty to identify and designate those resources and facilities. It may be done in advance as with the Big Cypress area of critical state concern, Section 380.055, Florida Statutes (1975), or through ratification of administratively developed recommendations as in the case of the California Coastal Zone Conservation Plan, CEEED v. California Coastal Zone Conservation Commission, supra. In either case the ultimate selection of priorities for areas of critical state or regional concern will rest with representatives of our government charged with such responsibilities under our Constitution.

The decisions of the District Court of Appeal, First District, are affirmed.

It is so ordered.

ADKINS, BOYD, HATCHETT and ALDERMAN, JJ., concur.

ENGLAND, C. J., concurs with an opinion, with which ADKINS, J., concurs.

OVERTON, J., concurs in result only.

ENGLAND, Chief Justice,

concurring.

I sincerely hope that the significance of our decision today is not lost in a debate concerning its effect on the Environmental Land and Water Management Act. Justice Sundberg has revitalized a vastly more important doctrine — one that guarantees that Florida’s government will continue to operate only by consent of the governed. He is saying, quite simply, that whatever may be the governmental predilections elsewhere, in Florida no person in one branch of our government may by accident or by assignment act in a role assigned by the Constitution to persons in another branch.

Law giving, the power involved here, is a responsibility assigned to the legislature, and that body is prohibited from relegating its responsibility wholesale to persons, whether elected or appointed, whose duties are simply to see that the laws are observed. The people of Florida placed that restraint on the legislature, as they had every right to do. People in other states may not restrict their public officials to this extent, but their authority to do so, and the effect of their doing so, are readily acknowledged even in states without a similar constitutional limitation. For example, in Barry and Barry, Inc. v. State Department of Motor Vehicles, 500 P.2d 540, 544 (Wash.1972), the court commented on the provision in Washington’s Constitution which, like the first sentence of Article II, Section 2 of our Constitution, merely assigns legislative power to the legislature:

To construe these provisions as confining the exercise of legislative power to the legislative bodies, would be to read them as limitations of power rather than as grants of power. We may assume that if the framers had intended to so limit the power of the legislative bodies, they would have done so expressly, rather than by implication.

What was not done in Washington is precisely what has been done in Florida.

In my opinion, Florida’s unique constitutional directive that governmental powers should not be aggregated in one branch, by usurpation, inadvertence or knowing delegation, experiences a refreshing resurgence from Justice Sundberg’s opinion.

ADKINS, J., concurs.

ON PETITION FOR REHEARING OR CLARIFICATION

SUNDBERG, Justice.

Appellants have filed in this cause a petition for rehearing or clarification of the Court’s principal opinion [372 So.2d 913] filed November 22, 1978. It is asserted that certain language in the opinion may result in unduly circumscribing the legislature in its response to the invalidation of portions of section 380.05, Florida Statutes (1975). The portion of the opinion allegedly giving rise to the appellants’ concerns is:

[T]he legislature need only exercise its constitutional prerogative and duty to identify and designate those resources and facilities. It may be done in advance as with the Big Cypress area of critical state concern, Section 380.055, Florida Statutes (1975), or through ratification of administratively developed recommendations .

At 925.

Appellants maintain that the quoted language can be construed to limit the legislature to the two alternatives suggested in its attempt to devise legislation to protect and conserve our natural resources while not violating the separation of powers doctrine.

Because of the significance of this issue, we deem it appropriate, in this instance, to disavow the construction attributed by appellants to the above-quoted language. The examples outlined in the opinion present obvious remedies for the deficiencies found in section 380.05; however, it was not our purpose to indicate that the alternatives stated are exclusive.

Accordingly, the petition for rehearing is denied.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.

      . Cross Key Waterways v. Askew, 351 So.2d 1062 (Fla. 1st DCA 1977); Postal Colony Co., Inc. v. Askew, 348 So.2d 338 (Fla. 1st DCA 1977).

      . Art. II, § 7, Fla.Const., reads:
      “Natural resources and scenic beauty. — It shall be the policy of the state to conserve and protect its natural resources and scenic beauty. Adequate provision shall be made by law for the abatement of air and water pollution and of excessive and unnecessary noise.”

      . For the purpose of clarity, we will refer to the 1975 version of the enactment, which version is similar in all material respects to its 1972 counterpart.

      . Art. IV, § 4, Fla.Const.; §§ 20.03(1), 20.31(2), Fla.Stat. (1975).

      . Except as may be otherwise specified, the 1975 version of Ch. 120 is applicable to the proceedings with respect to these consolidated cases.

      . § 120.041(4), Fla.Stat. (1973), the “old APA” provided that a rule is effective the day following the date it is filed.

      . Askew v. Postal Colony Co., Inc., supra.

      . Composed of 322,690 acres in Polk and Lake Counties.

      . Askew v. Cross Key Waterways, supra.

      . “All lands in Monroe County, except: (1) that portion . . . included within . the Everglades National Park and areas north of said Park; [and] (2) all lands seaward of mean high water that are owned by local, state, or federal governments.” Ch. 22F-8, Fla.Admin.Code.

      . See text of opinion, p. 922, supra.

      . E. g., In re Apportionment Law Senate Joint Resolution Number 1305, 263 So.2d 797, 805 (Fla.1972); Monington v. Turner, 251 So.2d 872, 875 (Fla.1971); State ex rel. Collier Land Investment Corp. v. Dickinson, 188 So.2d 781, 783 (Fla. 1966).


source: Caselaw Access Project

author: PER CURIAM. ALDERMAN, Justice,

license: Public Domain

text:
    John A. SPENKELINK, Petitioner, v. Louie L. WAINWRIGHT, Director, Florida Department of Corrections, Respondent.
    No. 56941.
    Supreme Court of Florida.
    May 25, 1979.
    Howell L. Ferguson and Steven Gold-stein, Tallahassee, for petitioner.
    Jim Smith, Atty. Gen., and Raymond Marky, Asst. Atty. Gen., Tallahassee, for respondent.
   PER CURIAM.

Petitioner in this cause filed at 7:35 a. m. today a Petition for Writ of Habeas Corpus and an Application for Stay of Execution. These having been duly considered by the Court in emergency session after counsel for both sides were accorded oral argument, it was ordered at 9:28 a. m. that the Petition and the Stay be denied.

While still convened in emergency session, a Motion to Intervene as Amicus Curiae and to present a petition for review of sentence and an application for stay was filed by telephone with Chief Justice England and Justices Adkins and Boyd by Cheney Mason, Esquire, 127 N. Magnolia, Orlando, Florida.

The gravamen of the petition appeared to be a suggestion that the process by which executions are carried out in Florida is unconstitutional (i) as violative of due process of law, inasmuch as no rules have been promulgated by the Department of Corrections under the administrative procedures act, and (ii) in that the legislature has unduly delegated legislative authority to the Department. Counsel for both sides were given an opportunity to comment on these matters. The Court then duly considered the petition, application, and motion, and at 9:35 a. m. the Motion to Intervene as Ami-cus Curiae was denied.

Counsel for petitioner promptly made an oral motion for a stay and a request for review of petitioner’s sentence on the same grounds urged by Mr. Cheney. The Court having considered these matters, both were at 9:48 a. m. denied.

ENGLAND, C. J., and ADKINS, BOYD, SUNDBERG and HATCHETT, JJ., concur.

ALDERMAN, J., concurs specially with an opinion, with which ADKINS, J., concurs.

OVERTON, J., although not participating in this decision, was in telephone communication with the other justices throughout the proceedings on this date.

ALDERMAN, Justice,

concurring specially.

I agree with the holding of the majority opinion; however, I take this opportunity to express my view of the questionable practice of waiting until a death warrant is signed by the governor to file petitions raising matters which could have been brought to the Court’s attention months or even years before the warrant is signed. Such conduct, in my opinion, is an abuse of the judicial process.

John Spenkelink was convicted of murder in the first degree and was sentenced to death in December, 1973. This Court upheld his judgment and sentence on May 8, 1975. Spinkellink v. State, 313 So.2d 666 (Fla.1975). Certiorari was thereafter sought in and denied by the Supreme Court of the United States. Spenkelink v. Florida, 428 U.S. 911, 96 S.Ct. 3327, 49 L.Ed.2d 1221 (1976). In September, 1977, after the governor issued a death warrant for Spen-kelink, Spenkelink sought post-conviction relief in the trial court pursuant to Florida Rule of Criminal Procedure 3.850, raising matters which properly could have and should have been raised before the signing of the death warrant. We found these matters to be without merit and affirmed the trial court’s denial of post-conviction relief. Spenkelink v. State, 350 So.2d 85 (Fla.1977). We also denied the motion for stay of execution. The Supreme Court of the United States denied certiorari. Spenkelink v. Florida, 434 U.S. 960, 98 S.Ct. 492, 54 L.Ed.2d 320 (1977). After the death warrant was signed, Spenkelink also filed a petition for writ of habeas corpus in the federal district court which alleged the same grounds as those raised in the state courts. This petition was denied, and the Fifth Circuit Court of Appeals affirmed the denial of the petition for writ of habeas corpus. Spinkellink v. Wainwright, 578 F.2d 582 (1978). The Supreme Court of the United States denied certiorari. Spinkellink v. Wainwright, - U.S. -, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979).

In April, 1979, Spenkelink filed yet another motion to vacate in the trial court, alleging that the State failed to prove premeditation, that his death sentence is disproportionate to his crime and to sentences imposed in similar cases, and that, the death penalty statute is unconstitutional because it attempts to govern practice and procedure. This motion was denied, and on May 10, 1979, he filed an appeal from the order of denial of the motion to vacate. A second death warrant was signed on May 18, 1979, after which he. moved for a stay of execution. On May 21, 1979, we denied the stay and affirmed the trial court’s order denying the order to vacate, set aside, or correct sentence. On this same date, he filed another habeas corpus petition with the federal district court. The federal district court, on May 21, 1979, dismissed the petition, denied an application for stay of execution, and denied an application for certificate of probable cause. On May 22,1979, the Fifth Circuit Court of Appeals denied his request for application for certificate of probable cause and application for stay pending appeal. An application for stay of execution was thereafter filed with the Supreme Court of the United States on May 22, 1979. Justice Marshall granted the stay of execution until May 24, 1979. This stay was subsequently vacated by the Supreme Court of the United States. Judge Tuttle of the Fifth Circuit Court of Appeals had also been requested to grant a stay of execution, which he did. This stay, however, was vacated by order of the Fifth Circuit Court of Appeals effective 9:30 a. m., May 25, 1979. A final, desperate, last-minute attempt to stay the execution was made by Spenkelink when he sought review of the Fifth Circuit’s action. The Supreme Court of the United States denied this final request for relief.

At 7:35 a. m. on May 25, 1979, the date the execution was scheduled to take place, Spenkelink filed a petition for writ of habe-as corpus with this Court, alleging that he was entitled to mitigation of sentence because of the failure of this Court on direct appeal to consider a mitigating factor and because this Court failed to consider the complete record of all the proceedings in the trial court. While the Court was convened in emergency session to consider this habeas corpus petition which raised matters which should have been raised long before and were completely without merit, a motion to intervene as amicus curiae and to present a petition for review of sentence and application for stay, the gravamen of which is stated in the majority opinion, was filed by telephone at the last minute. This final petition also alleged grounds which should have been raised long before the “eleventh hour,” and which, in any event, were without merit.

Spenkelink has abused the writ of habeas corpus and judicial process in general by these last-minute, frivolous attempts to stay the inevitable execution by the filing of matters which should have been raised, if at all, long before the death warrant was signed.

The federal court system proscribes the abuse of the writ by placing stringent requirements on the successive filings of petitions for writ of habeas corpus. 28 U.S.C. 2244(b) provides:

(b) When after an evidentiary hearing on the merits of a material factual issue, or after a hearing on the merits of an issue of law, a person in custody pursuant to the judgment of a State court has been denied by a court of the United States or a justice or judge of the United States release from custody or other remedy on an application for a writ of habeas corpus, a subsequent application for a writ of habeas corpus in behalf of such person need not be entertained by a court of the United States or a justice or judge of the United States unless the application alleges and is predicated on a factual or other ground not adjudicated on the hearing of the earlier application for the writ, and unless the court, justice, or judge is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ. (Emphasis supplied.)

See Johnson v. Massey, 516 F.2d 1001 (5th Cir. 1975).

Even prior to the adoption of this provision relating to abuse of the writ, the Supreme Court of the United States in Sanders v. United States, 373 U.S. 1, 18, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963), stated:

[I]f a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application, in the hope of being granted two hearings rather than one or for some other such reason, he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground. The same may be true if, as in Wong Doo, [265 U.S. 239, 44 S.Ct. 524, 68 L.Ed. 999], the prisoner deliberately abandons one of his grounds at the first hearing. Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation, or to entertain collateral proceedings whose only purpose is to vex, harass, or delay.
We need not pause over the test governing whether a second or successive application may be deemed an abuse by the prisoner of the writ or motion remedy. The Court’s recent opinions in Fay v. Noia, supra, 372 U.S., at 438-440, 83 S.Ct., at 848, 849, and Townsend v. Sain, supra, 372 U.S., at 317, 83 S.Ct., at 760, 761, deal at length with the circumstances under which a prisoner may be foreclosed from federal collateral relief. The principles developed in those decisions govern equally here.

In Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), the Supreme Court explained that habeas corpus traditionally has been governed by equitable principles among which is the principle that “a suit- or’s conduct in relation to the matter at hand may disentitle him to the relief he seeks.” 372 U.S. at 438, 83 S.Ct. at 849.

The federal rule is sound. A death row inmate who deliberately withholds one of two or more arguable points for collateral relief at the time he files his first petition, in an attempt to thwart the judicial process and to gain a temporary stay of execution, should not be entitled to consideration of any such late-filed petitions.

The matters raised by the present petitions reasonably could have been raised pri- or to the signing of the death warrant and appear to be matters that were held until the last minute in the hopes of obtaining another stay of execution. As Justice Rehnquist stated in Evans v. Bennett, - U.S. -, 99 S.Ct. 1481, 1485, 59 L.Ed.2d 756, 761 (1979), (an opinion of a Justice in chambers):

To use the technique of a last minute filing as a sort of insurance to get at least a temporary stay when an adequate application might have been presented earlier, is, in my opinion, a tactic unworthy of our profession. Such an explanation is not a condition of the granting of this or any further stay, but the absence of it will be taken into consideration by me.

Justice Rehnquist further declared:

There must come a time, even when so irreversible a penalty as that of death has been imposed upon a particular defendant, that the legal issues in the casé have been sufficiently litigated and relitigated so that the law must be allowed to run its course. If the holdings of our Court in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), and Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), are to be anything but dead letters, capital punishment when imposed pursuant to the standards laid down in those cases is constitutional; and when the standards expounded in those cases and in subsequent decisions of this Court bearing on those procedures have been complied with, the State is entitled to carry out the death sentence. Indeed, just as the rule of law entitles a criminal defendant to be surrounded with all the protections which do surround him under our system prior to conviction and during trial and appellate review, the other side of that coin is that when the State has taken all the steps required by that rule of law, its will, as represented by the legislature which authorized the imposition of the death sentence, and the state courts which imposed it and upheld it, should be carried out.

- U.S. at -, 99 S.Ct. at 1482-1483, 59 L.Ed.2d at 759.

Accordingly, I concur in the denial of the requested relief not only because it is without merit but also because it comes too late.

ADKINS, J., concurs.


author: ADKINS, Justice. OVERTON, Justice,

text:
    James Dale GROWDEN, Petitioner, v. STATE of Florida, Respondent.
    51710.
    Supreme Court of Florida.
    June 21, 1979.

      Richard L. Jorandby, Public Defender, and Jerry L. Schwarz, Asst. Public Defender, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen., and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for respondent.
   ADKINS, Justice.

By petition for certiorari we have for review an opinion of the district court of appeal, fourth district (Growden v. State, 347 So.2d 631 (Fla. 4th DCA 1977)), which allegedly conflicts with a decision of the district court of appeal, second district (Huff v. State, 350 So.2d 123 (Fla.2d DCA 1977)), on the same point of law. Art. V, § 3(b)(3), Fla.Const.

The essential issue is whether subsections (a), (b), and (c) of section 812.13(2), Florida Statutes (Supp.1974), are merely sentencing guidelines for the trial judge or whether they are lesser degrees of the offense or lesser included offenses which must be submitted to the jury. Defendant below, petitioner here, was charged with robbery. At trial he requested jury instructions as to the lesser included offenses of robbery; i. e., whether a firearm was carried and whether deadly force was used. The trial court denied the requested instructions and, upon appeal, the conviction was affirmed.

In Huff v. State, supra, defendant was convicted of robbery with a deadly weapon and, upon appeal, raised the question of whether the trial judge committed reversible error in failing to instruct the jury on the offense of robbery with a weapon. The district court of appeal reversed and, speaking through Judge Boardman, said:

Appellant’s counsel made a timely request that the trial court instruct the jury on the crimes of robbery with a deadly weapon, robbery with a weapon, and robbery. The trial judge did instruct the jury on robbery with a deadly weapon and robbery but refused to instruct on robbery with a weapon. A trial judge is required to give an instruction when timely requested on necessarily lesser included offenses of the crime charged. State v. Terry, 336 So.2d 65 (Fla.1976). Thus, if robbery with a weapon is a necessarily lesser included offense of robbery with a deadly weapon, as we believe it is, it follows that the trial court erred in failing to give appellant’s requested instruction.
In Brown v. State, 206 So.2d 377, 382 (Fla.1968), the Florida supreme court defined a necessarily lesser included offense as “an essential aspect of the major offense. . . ” Under this definition it is clear that robbery with a weapon is a necessarily lesser included offense of robbery with a deadly weapon. It would be manifestly impossible to prove robbery with a deadly weapon without proving robbery with a weapon since obviously a deadly weapon is a weapon. In this case the evidence concerning the closed pocketknife would prove the presence of a weapon as well as the presence of a deadly weapon. Furthermore, the robbery statute clearly delineates three stages or degrees of robbery in descending order: robbery with a deadly weapon, robbery with a weapon, and robbery without a weapon. Section 812.13(2), Florida Statutes (1975).

350 So.2d at 123-24.

We approve this decision and adopt the opinion in Huff v. State, supra, as determinative of the issue in this case.

The decision of the district court of appeal is quashed and the cause is remanded with instructions to reverse the judgment of conviction and remand the cause to the trial court for new trial.

It is so ordered.

BOYD, SUNDBERG and HATCHETT, JJ., concur.

ENGLAND, C. J., concurs in result only.

OVERTON, Justice,

dissenting.

I dissent on the grounds that there is no basis for this Court’s jurisdiction to review this per curiam affirmed decision of the district court, even though I agree with the majority on the merits. This is no more than a second appeal.


author: PER CURIAM.

text:
    GEORGIA CASUALTY & SURETY CO., Petitioner-Appellant, v. Ervin A. SIMANDL, Respondent-Appellee.
    Nos. 54065, 54139.
    Supreme Court of Florida.
    June 21, 1979.
    John R. McDonough of Pitts, Eubanks & Ross, Orlando, for petitioner-appellant.
    Robert F. Evans, Jr., and Stephen A. Weinstein, Orlando, for respondent-appel-lee.
   PER CURIAM.

Affirmed. Markert v. Johnston, 367 So.2d 1003 (Fla.1978).

ENGLAND, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.


author: SUNDBERG, Justice,

text:
    COCONUT GROVE MARINE PROPERTIES, INC., et al., Petitioners, v. CITY OF MIAMI, Florida, etc., Respondents.
    No. 54667.
    Supreme Court of Florida.
    June 21, 1979.
    Alan G. Greer and Phillip E. Walker, Frates, Floyd, Pearson, Stewart, Richman & Greer, Miami, for petitioners.
    George F. Knox, City Atty., John R. Farrell, Sp. Counsel, Michel E. Anderson of Dubbin, Schiff, Berkman & Dubbin, Miami, for respondent.
   The Court having accepted jurisdiction and heard argument, and upon further consideration of the matter, we have determined that the Court is without jurisdiction. Therefore, certiorari is denied. [Opinion below: 358 So.2d 1151]

No Motion for Rehearing will be entertained by the Court. See Fla.R.App.P. 9.330(d).

ENGLAND, C. J., and ADKINS, OVER-TON, HATCHETT, and ALDERMAN, JJ., concur.

SUNDBERG, J., dissents with an opinion, with which BOYD, J., concurs.

SUNDBERG, Justice,

dissenting.

I respectfully dissent. Although the majority denies the petition for certiorari on the ground that we have no jurisdiction, I reach a contrary result.

After recognizing the authority of a municipality to condemn private property for incidental use by private enterprise so long as the predominant purpose is public, the trial court concluded as a matter of fact that the proposed commercial undertaking in the instant case was not primarily for public park and recreation purposes. It was clear that the avowed purpose of the taking was for a public park as demonstrated by (i) the master plan for the project, (ii) the documentation surrounding the “Parks for People” bond issue which funded the condemnation and (iii) the resolution of the Miami City Commission authorizing the project. The trial court weighed the testimony of two planners, Thomas T. Russell who prepared the master plan and Thomas Dunne, an employee of the city, and concluded that the proposal for private commercial activity on the property under consideration by the city did not meet the test of Baycol, Inc. v. Downtown Development Authority of City of Fort Lauderdale, 315 So.2d 451 (Fla.1975), and Panama City v. State, 93 So.2d 608 (Fla.1957). The Court simply weighed all the evidence and determined that commercial enterprise, as opposed to public park purposes, was dominant in the proposed use of the property.

The District Court of Appeal, Third District, on the other hand, viewed the same evidence, applied the same legal authorities and concluded that the trial court departed from the essential requirements of law. City of Miami v. Coconut Grove Marine Properties, 358 So.2d 1151, 1155 (Fla.3d DCA 1978). Respectfully, the trial court did not depart from the requirements of law, the district court did. That law is found in Shaw v. Shaw, 334 So.2d 13 (Fla.1976), and Westerman v. Shell’s City, Inc., 265 So.2d 43 (Fla.1972), to cite but several of a plethora of decisions which teach that an appellate court shall not reweigh the evidence before the trial court and substitute its judgment for that of the trier of fact. Although the issue before the trial court was a mixed one of fact and law, its judgment was based upon competent substantial evidence to which were applied the controlling principles of law.

As I read the final judgment of the trial court, the only issue decided was that the proposal was defective and the city was granted the opportunity to modify the proposal and readvertise for bids for a project that would be more in keeping with public park purposes. The petitioners’ prayers for injunctive relief and for compensatory damages were denied, each without prejudice. Recognizing the lack of finality in the trial court’s judgment, the district court treated the appeal as a petition for certiorari. Believing, as I do, that the district court improperly substituted its judgment for that of the trial court on the issue of predominant public purpose, I would quash the decision of the district court and direct that the judgment of the trial court be reinstated. All other issues visited in the district court opinion are, in my judgment, premature until the trial court should take some further definitive action with regard to damages or injunctive relief.

BOYD, J., concurs.


author: ALDERMAN, Justice. HATCHETT, Justice,

text:
    Kenneth A. PLANTE, Appellant, v. Bruce A. SMATHERS, etc., et al., Appellees.
    No. 54851.
    Supreme Court of Florida.
    June 21, 1979.

      Tobias Simon, Miami, Charles L. Carlton, Lakeland, and Richard C. McFarlain of McFarlain, Bobo & Sternstein, Tallahassee, for appellant.
    Albert J. Hadeed, Southern Legal Counsel, Inc., Gainesville, and Robert J. Vossler, Gen. Counsel, Dept, of State, Tallahassee, for appellees.
    Jim Smith, Atty. Gen., and David K. Miller, Asst. Atty. Gen., Tallahassee, for inter-venor-appellees.
   ALDERMAN, Justice.

This is a direct appeal from a final judgment of the Circuit Court of Leon County, construing article II, section 8, Florida Constitution. The issue before us is whether this constitutional provision requires full and public financial disclosure as a condition precedent to a candidate qualifying for an elective constitutional office when the candidate qualifies after July 1 of the election year. This case, as it relates to the 1978 election, has become moot; however, we elect to retain jurisdiction and to resolve the constitutional issue because it is a matter of great importance and of general public interest and will probably recur in the next general election. See Sadowski v. Shevin, 345 So.2d 330 (Fla.1977). We construe article II, section 8, to require a candidate to make full and public financial disclosure even though he or she may not qualify prior to July 1 of the election year.

The following factual background is pertinent. Senator Kenneth Plante inquired of the Division of Elections whether a candidate for the state senate, qualifying on or after July 1 of the election year, has the legal obligation to make financial disclosure under article II, section 8, Florida Constitution, or chapter 112, Florida Statutes (1977). He was advised by letter from Mary Singleton, director of the division, that a candidate for public office'is required to file a statement of financial disclosure pursuant to chapter 112, Florida Statutes (1977), at the time of qualifying as a candidate; however, nonincumbent candidates for elective constitutional office who do not become candidates before July 1 of an election year are not required to file the full and public financial disclosure contemplated by article II, section 8(a) and (h) Florida Constitution, until the July 1 following qualification as a candidate.

Common Cause, Manning Dauer, and Stephen Pajcic filed with the circuit court a petition for writ of mandamus or, in the alternative, a complaint for declaratory and injunctive relief, seeking to compel the secretary of state to refuse to certify any candidate for elected constitutional office without having received from the candidate full and public financial disclosure as defined by article II, section 8(h). They further requested that the court declare Singleton’s opinion null and void to the extent that it conflicts with article II, section 8(a) and (h). The circuit court entered an alternative writ directing Smathers to refuse to certify such candidates or to show cause. The circuit court was then advised that, due to Smathers’ resignation, Jesse J. McCrary had been appointed secretary of state and that it was his intent to refuse to certify any candidate for elected constitutional office without having first received from such candidate the full and public financial disclosure required by article II, section 8.

The circuit court thereafter entered a peremptory writ of mandamus ordering the secretary of state to decline to accept qualifying papers of any candidate for elective constitutional office when such papers do not include full and public financial disclosure required by article II, section 8(a) and (h). The circuit court found that, although the issue might be moot as to these parties, the public interest would be served by resolving the issues; that sections 8(a) and (h) are self-executing; that the inclusion of the filing deadline of July 1 in 8(h) does not operate to relieve a nonincumbent candidate of the more stringent disclosure requirements of 8(h) merely because he does not become a candidate until after July 1; and that 8(a) and (h) require that a candidate for elective constitutional office file full and public financial disclosure with the secretary of state at the time he or she submits qualifying papers. Plante now appeals this ruling.

In November 1976, the people of Florida adopted article II, section 8, Florida Constitution, commonly referred to as the “Sunshine Amendment.” In construing this section, it is our duty to discern and effectuate the intent and objective of the people. In re Advisory Opinion to the Governor, 243 So.2d 573 (Fla.1971); State ex rel. McKay v. Keller, 140 Fla. 346, 191 So. 542 (1939). The spirit of the constitution is as obligatory as the written word. Amos v. Matthews, 99 Fla. 1, 126 So. 308 (1930). The objective to be accomplished and the evils to be remedied by the constitutional provision must be constantly kept in view, and the provision must be interpreted to accomplish rather than to defeat them. State ex rel. Dade County v. Dickinson, 230 So.2d 130 (Fla.1970). A constitutional provision is to be construed in such a manner as to make it meaningful. A construction that nullifies a specific clause will not be given unless absolutely required by the context. Gray v. Bryant, 125 So.2d 846 (Fla.1960).

We may glean light for discerning the people’s intent from historical precedent, from the present facts, from common sense, and from an examination of the purpose the provision was intended to accomplish and the evils sought to be prevented. In re Advisory Opinion to the Governor, 276 So.2d 25 (Fla.1973). Furthermore, we may look to the explanatory materials available to the people as a predicate for their decision as persuasive of their intent. Williams v. Smith, 360 So.2d 417 (Fla.1978); In re Advisory Opinion to the Governor, 343 So.2d 17 (Fla.1977). Further, an interpretation of a constitutional provision which will lead to an. absurd result will not be adopted when the provision is fairly subject to another construction which will accomplish the manifest intent and purpose of the people. City of Miami v. Romfh, 66 Fla. 280, 63 So. 440 (1913).

Clearly the primary purpose for which the Sunshine Amendment was adopted was to impose stricter standards on public officials so as to avoid conflicts of interest. The four major legitimate concerns of the people in advancing this amendment were accurately explained in Plante v. Gonzalez, 575 F.2d 1119 (5th Cir. 1978). These are the public’s right to know an official’s interest, deterrence of corruption and conflicting interests, creation of public confidence in Florida’s public officials, and assistance in detecting and prosecuting officials who violate the law. See also Myers v. Hawkins, 362 So.2d 926 (Fla.1978).

Of utmost importance to our determining the intent of the people in adopting article II, section 8(a) and (h), is their expressed desire to be informed as to the personal finances of those they will be voting to put into office because of their legitimate concern to avoid conflicts of interests and since they feel that, armed with this knowledge, they will be able to discern the interests to which a public official most likely will be responsive. See Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). Our form of government is based upon an enlightened choice by an informed electorate, and in Florida the people have expressly declared their desire that this information be made available to them by candidates for elected constitutional office.

We would reach an absurd result totally incongruous with the will of the people if we were to construe article II, section 8, to mean that one who becomes a candidate after July 1 of an election year need not disclose until the following July 1. An unsuccessful candidate would never be required to disclose, and a successful candidate would not be required to disclose until after six months into his office. Such construction would defeat the people’s intent to become fully informed as to the candidates for office. The materials available to the voters at the time of their adoption of this constitutional provision reflect that they understood that all candidates would be required to disclose before they could ask the people to trust them with the responsibilities of government.

Plante suggests that it is the schedule to section 8 which makes it self-executing and which imposes the July 1 deadline on candidates for filing of their full and public financial disclosure. An uncritical reading of subsection (h) may lead one to conclude that this is the case. Since such a conclusion would lead to an absurd result, however, we are charged with the responsibility of determining whether there is a more reasonable construction available. We find that there is such a construction which will effectuate the people’s intention to be informed prior to the election rather than long after the election has passed. Construing subsection (h) in such a manner as to give the natural significance to the words in the order used, we conclude that the July 1 date only applies to disclosure by officeholders since only officeholders can be subject to a fixed disclosure date in each year. The July 1 date contributes nothing to the requirement that candidates for elected constitutional office make full and public disclosure.

The application of subsection (h) solely to officeholders does not derogate from the self-executing nature of subsection (a). A constitutional provision is self-executing if it does not require legislative implementation. The test of whether a constitutional provision is self-executing is succinctly stated in Gray v. Bryant:

[W]hether or not the provision lays down a sufficient rule by means of which the right or purpose which it gives or is intended to accomplish may be determined, enjoyed, or protected without the aid of legislative enactment. State ex rel. City of Fulton v. Smith, 1946, 355 Mo. 27, 194 S.W.2d 302. If the provision lays down a sufficient rule, it speaks for the entire people and is self-executing. City of Shawnee v. Williamson, Okl.1959, 338 P.2d 355. The fact that the right granted by the provision may be supplemented by legislation, further protecting the right or making it available, does not of itself prevent the provision from being self-executing. People v. Carroll, 1958, 3 N.Y.2d 686, 171 N.Y.S.2d 812, 148 N.E.2d 875.

125 So.2d at 851. See also Alsdorf v. Broward County, 333 So.2d 457 (Fla.1976).

Subsection (a) states that all candidates for elected constitutional offices shall file full and public disclosure of their financial interests. This language is clear and unambiguous, and the intent thereof is obvious and understandable. The trial court correctly determined that subsection (a) is self-executing and interpreted it to require that a candidate for elective constitutional office is required to file full and public financial disclosure with the secretary of state at the time he or she submits qualifying papers, pays the qualifying fee, if required, and subscribes to the candidate’s oath, if required. This is a reasonable construction of subsection (a) insofar as the time at which a candidate is required to disclose. Section 112.312(4), Florida Statutes (1977), defines a candidate as follows:

“Candidate” means any person who has filed a statement of financial interest and qualification papers, has subscribed to the candidate’s oath as required by s. 99.021, and seeks by election to become a public officer. This definition expressly excludes a committeeman regulated by chapter 103 and persons seeking any other office or position in a political party.

This statutory provision was in effect at the time the people ratified article II, section 8, and it served as a reasonable reference for the meaning of the term “candidate.” We, therefore, conclude that article II, section 8(a), requires that candidates for elected constitutional office .file full and public financial disclosure at the time they qualify.

Furthermore, we hold that to effectuate the intent of the people, the secretary of state must refuse to certify as qualified for election any candidate who fails to file the full financial disclosure required by article II, section 8 since failure to file constitutes a defect or insufficiency in a candidate’s qualifying papers. See State ex rel. Fair v. Adams, 139 So.2d 879 (Fla.1962); Eastmoore v. Stone, 265 So.2d 517 (Fla. 1st DCA 1972).

Accordingly, we affirm the judgment of the circuit court and hold that article II, section 8(a), is self-executing; that candidates for elected constitutional office must make the full and public financial disclosure prior to or at the time they qualify; and that, if a candidate fails to make such disclosure, the secretary of state must decline to accept the candidate’s qualifying papers.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON and SUNDBERG, JJ., concur.

HATCHETT, J., concurs specially with an opinion.

HATCHETT, Justice,

concurring specialty-

I concur specially to point out that the court is drifting into the dangerous practice of exercising its jurisdiction whenever it feels a matter “is of great importance” or “of general public interest,” even though legal issues are moot. We should retreat from this practice and leave “politically hot” issues to the political arena.

I also concur specialty to emphasize that a literal reading of article II, section 8, would support ⅛⅜ conclusion reached by Secretary Smathers, while judicial findings on intent, gleaned from “historical precedent” and from “an examination of the purposes of the provision” support the interpretation made by Secretary McCrary. Both opinions were correct when considered in light of the framework within which each was required to work.

      . Article II, section 8, provides in pertinent part:
      Ethics in government. — A public office is a public trust. The people shall have the right to secure and sustain that trust against abuse. To assure this right:
      (a) All elected constitutional officers and candidates for such offices and, as may be determined by law, other public officers, candidates, and employees shall file full and public disclosure of their financial interests.
      (h) Schedule — On the effective date of this amendment and until changed by law:
      (1)Full and public disclosure of financial interests shall mean filing with the secretary of state by July 1 of each year a sworn statement showing net worth and identifying each asset and liability in excess of $1,000 and its value together with one of the following:
      a. A copy of the person’s most recent federal income tax return; or
      b. A sworn statement which identifies each separate source and amount of income which exceeds $1,000. The forms for such source disclosure and the rules under which they are to be filed shall be prescribed by the independent commission established in subsection (f), and such rules shall include disclosure of secondary sources of income.
      (2) Persons holding statewide elective offices shall also file disclosure of their financial interests pursuant to subsection (h)(1).
      (3) The independent commission provided for in subsection (f) shall mean the Florida Commission on Ethics.