author: ENGLAND, Chief Justice.

text:
    Kenneth M. MYERS, Petitioner, v. Paula F. HAWKINS, Chairman, William T. Mayo, Commissioner, and William H. Bevis, Commissioner, of and constituting the Florida Public Service Commission, Respondents.
    No. 52639.
    Supreme Court of Florida.
    Sept. 14, 1978.

      J. Elliott Messer, Robert S. Goldman and Robert L. Hinkle of Thompson, Wadsworth, Messer, Turner & Rhodes, Tallahassee, for petitioner.
    William L. Weeks, Gen. Counsel; and Barrett G. Johnson, Tallahassee, for respondents.
    Bruce C. Starling, Gen, Counsel; and Nancy G. Linnan, Asst. Gen. Counsel, Tallahassee, for Reubin O’D. Askew, Governor of the State of Florida.
    James D. Whisenand, Deputy Atty. Gen. and Sharyn L. Smith and Frank A. Vickory, Asst. Attys. Gen., for Robert L. Shevin, Atty. Gen. of the State of Florida, Tallahassee, amici curiae.
    Philip C. Claypool, Tallahassee, for the State of Florida Commission on Ethics, ami-cus curiae.
   ENGLAND, Chief Justice.

We are asked by Kenneth M. Myers, a member of The Florida Bar and an elected state senator, to review an order of the Florida Public Service Commission which prohibits him from practicing before that agency. The genesis of the present controversy was Myers’ request for a declaratory statement from the Commission, pursuant to Section 120.565, Florida Statutes (1977), as to whether he would be permitted to continue practicing before the Commission following the 1976 adoption by the voters of Florida of the so-called “Sunshine Amendment” to the Florida Constitution. Among the provisions added to the Constitution by that amendment was Article II, Section 8(e), which provides in pertinent part:

“No member of the legislature shall personally represent another person or entity for compensation during term of office before any state agency other than judicial tribunals.”

The principal issues before us are whether the Public Service Commission is a “judicial tribunal” within the meaning of this provision, and if not whether the amendment applies to legislators in office on its effective date.

I

The Commission answered Myers’ request for a declaratory statement by stating its belief that the Commission is a judicial tribunal. It nonetheless denied his right to continue practice before the Commission so that the issue could be passed upon by this Court. The governor and the attorney general, as amici curiae before the Court, challenge the propriety of this entire proceeding on the ground that the Florida Commission on Ethics, an entity created by the Sunshine Amendment, is the only governmental body empowered to determine what is or is not a “judicial tribunal” within the meaning of Section 8(e).

We share amici’s view that the Administrative Procedure Act, Chapter 120, Florida Statutes (1977), is not the appropriate mechanism by which to determine the meaning of ambiguous constitutional terms. Indeed, declaratory statements authorized by Section 120.565 are particularly unsuited to that purpose. That section is available only to persons seeking to determine “the applicability [to them] of any statutory provision or of any rule or order of the agency.” (Emphasis added.) In this case the Public Service Commission endeavored to couch its order in a manner which would declare the applicability of one of its rules of practice to Myers. Nonetheless, it is quite clear that Myers had been and remained eligible to practice before the Commission but for Article II, Section 8(e) of the Constitution. We now hold that an affected agency is not the appropriate body to make a determination of its own status under Section 8(e) — only the Ethics Commission should make those determinations.

Nevertheless, we recognize that the procedure employed by Myers in this instance was dictated by necessity. Prior to the effective date of the Sunshine Amendment, Myers had asked the attorney general for an opinion as to his right to practice before the Public Service Commission in light of the amendment’s apparent prohibition. The attorney general consulted with the executive director of the statutory predecessor of the Ethics Commission and concluded that Myers would be prohibited from practicing before the Commission. (The attorney general was and is required by law to render assistance to the Ethics Commission when requested.) There is no reason to believe that Myers would have obtained a different legal opinion had he requested one from the Ethics Commission after the effective date of the Sunshine Amendment, since the matter undoubtedly would have been referred again to the attorney general for advice. For this reason alone, we decline to remand this case to the Public Service Commission to discharge the proceeding under Section 120.68(13)(a), Florida Statutes (1977). The courts will not require parties to engage in a series of useless acts. Kawasaki of Tampa, Inc. v. Calvin, 348 So.2d 897, 901 (Fla. 1st DCA 1977). Accordingly, we take this occasion to construe the term “judicial tribunal” in Article II, Section 8(e) of the Florida Constitution, and to resolve Myers’ status before the Commission.

II

The term “judicial tribunal” is found in the Florida Constitution only in Section 8(e) of Article II, although the terms “courts” and “administrative agencies” are used elsewhere frequently. We presume that the language differentiation was intentional.

Amici allege that the term was drafted by the governor to prohibit legislators from appearing before all bodies of state government except three — the courts, the Industrial Relations Commission, and the judges of industrial claims. They rely on materials submitted as an appendix to their brief, basically comprising the governor’s early drafts of the proposed initiative petition which used the term “courts” and a written request of the chairman of the Industrial Relations Commission to expand the proposed terminology to embrace that tribunal and industrial claims judges.

Myers argues, basically, that whatever may have been the governor’s intent when he selected this term for the Constitution, his intent is less important than the understanding of the voters to whom it was submitted for adoption. He suggests that the governor’s thought processes and drafting materials were not available to the people of Florida before their vote, and that they were guided only by the bare terminology in the proposal and an explanatory flyer which accompanied the petition when it was circulated for placement on the ballot. The flyer’s only reference to this provision stated:

“The subsection also prohibits members of the legislature from representing clients before state agencies except before judicial tribunals. Judicial tribunals would include the courts, the Industrial Relations Commission and judges of industrial claims.”

Myers maintains that the critical word “include” is patently non-exclusive, and that the agencies listed behind it would be understood by the average voter to be examples of non-court tribunals rather than an enumeration of the only ones covered.

We have already held that the intent of the framer of a constitutional provision adopted by initiative petition will be given less weight in discerning the meaning of an ambiguous constitutional term that the probable intent of the people who reviewed the literature and the proposal submitted for their consideration. Williams v. Smith, 360 So.2d 417 (Fla.1978).

We are charged, then, to divine how the term “judicial tribunal” and the word “include” were generally perceived by the voters of Florida. To perform this task we initially consult widely circulated dictionaries, to see if there exists some plain, obvious, and ordinary meaning for the words or phrases approved for placement in the Constitution. There appear two simple enough definitions in Webster’s Third New International Dictionary (1971), where the words “judicial” and “tribunal” are defined, respectively, to mean:

“judicial: of, relating to, or concerned with a judgment, the function of judging, the administration of justice, or the judiciary ...[;] of, characterized by, or expressing judgment [;] . . . belonging or appropriate to a judge or the judiciary [.] ” (Webster’s at 1223.)
“tribunal: . . . the seat of a judge or one acting as a judge: the bench on which a judge and his associates sit for administering justice ... [;] a court or forum of justice: a person or body of persons having authority to hear and decide disputes so as to bind the disputants . . . [;] something that decides or judges: something that determines or directs a judgment or course of action [.] ” (Id. at 2441.)

The word “include” is defined in the same dictionary to be non-exclusive, as Myers suggests.

Beyond merely finding dictionary definitions for these terms, however, we are always obliged to interpret a constitutional term in light of the primary purpose for which it has been adopted. Both Myers and the amici recognize that the Sunshine Amendment was evolved to establish an arsenal of protections against the actual and apparent conflicts of interest which can arise among public officials, and that Section 8(e) was designed specifically to prevent those who have plenary budgetary and statutory control over the affairs of public agencies from potentially influencing agency decisions (or giving the appearance of having an influence) when they appear before the agencies as compensated advocates for others.

Bearing in mind the agreed purpose of the provision, we see our responsibility, essentially, as having to draw a line between two closely related alternatives. A first alternative is that the term “judicial tribunals” includes only courts (as delineated in Article V of the Florida Constitution), the Industrial Relations Commission, and the judges of industrial claims. Amici urge this position on three grounds: the gloss evident from the governor’s development of the phrases; the fact that we recently declared the Industrial Relations Commission to be “a judicial tribunal meeting constitutional requirements;” and the desirability of construing an exception to the constitutional constraint on conflicts of interest as narrowly as possible. A second alternative, urged by Myers, is that the term includes not only the three bodies named but also the Public Service Commission and select other agencies which perform functions in a manner equivalent to the judicial branch of government. Myers argues for this construction on the ground that judicial tribunals which the Section 8(e) exception would “include” generally would be understood by the average voter to encompass governmental bodies which possess four basic hallmarks: proceedings which are adversary; an impartial group of decisionmakers; the power to issue final orders which the agency itself may enforce; and an identifiable standard of appellate review which tests for due process in the agency’s decisional processes. This test to determine what is or is not a judicial tribunal, Myers argues, accords with both principles of constitutional construction which are appropriate here — that is, the likely common understanding of the term employed, and the need for consistency between the obvious purpose of the provision and the circulated explanation.

Myers persuasively suggests that we focus our attempt to identify exempted non-court judicial tribunals by reference to publicly-perceived characteristics of the agencies, rather than the technical materials leading to the selection of the terminology. It does not follow, however, that the use of Myers’ suggested test will produce the consequence which he suggests. That depends on whether we accept his further suggestion that the range of included agencies should be broadly construed to encompass those which possess the requisite judicial characteristics for some aspect of their activities, rather than those which possess those characteristics for all (or virtually all) of their activities. That choice, we believe, is dictated by the Constitution itself.

Article II, Section 8(e), governs representation by legislators “before any state agency other than judicial tribunals.” The thrust of the prohibition is to distinguish judicial tribunals from all other state agencies; it is not to identify functions within multi-faceted agencies which may, in part, have characteristics judicial in nature. The obvious proscription against legislators is in relation to governmental bodies, not to governmental functions. By confining the constitutional exception to judicial activities, we track the conceded purpose of the prohibition more precisely than the other alternative would allow. Moreover, this conclusion avoids the troublesome problem of searching among diverse responsibilities of each commission, agency and board of the state to determine whether it is endowed to some degree with the four critical characteristics.

Applying the “predominant characteristics” test described above, we find that although the term “quasi-judicial” has been used to refer to some of the Public Service Commission’s functions, the statutory range of the Commission’s responsibilities is so vast that the agency in fact exercises judicial-like powers in performing only a fraction (albeit a highly visible and significant fraction) of its duties. Plainly, the exercise of judicial-like powers by the Commission is not inherent in all (or virtually all) of its statutory activities, and we are satisfied that it would not have been perceived by the public as being a judicial tribunal. Industrial relations commissioners and judges of industrial claims, in contrast, do meet the appropriate requirements for a judicial tribunal under Article II, Section 8(e). There may be other agencies which satisfy that standard, but clearly the Public Service Commission does not.

We hold, therefore, that the term “judicial tribunals” in this provision of the Florida Constitution includes the judges of industrial claims, the Industrial Relations Commission, and all courts of the state created under Article V of the Constitution. (We do not now decide whether there may exist other agencies which may be “judicial tribunals” within the contemplation of Article II, Section 8(e), because they have as their sole, or virtually exclusive responsibility, the resolution of controversies.)

Ill

Inasmuch as Article II, Section 8(e), bars the appearance of legislators before the Public Service Commission, we are forced to consider whether the prohibition extends to legislators in office when it became effective. The issue is a difficult one. In addition to the complexity of the narrow legal question posed, it is apparent that our decision with respect to the applicability to incumbent legislators of the “during term” prohibition in Section 8(e) will determine as well the applicability, to a variety of incumbent officeholders, of the two-year “after term” ban, containing identical operative language, which appears as the first sentence of the same constitutional provision.

We can quickly dismiss any concern that Section 8(e) has retroactive effect with respect to Myers’ pre-1977 practice before the Public Service Commission. No one suggests that his representation of clients at the Commission before the amendment became effective has breached the public trust. The question posed here, although cast by the parties in terms of the amendment’s “retroactivity” and “prospectivity,” is whether the application of Section 8(e) after its adoption impermissibly impairs, during the unexpired portion of Myers’ four-year elective term, any of the rights, duties, or privileges appertaining to or dependent upon his public office. Five Florida decisions are said to bear on this question, but three of them are readily distinguishable.

In State ex rel. Judicial Qualifications Commission v. Rose, 286 So.2d 562 (Fla.1973), the Court refused to apply to an incumbent judge a constitutional amendment creating a mandatory retirement age which he had passed at the time the amendment became effective. The Rose decision, however, is not really helpful here. There the Court was obliged to reconcile two competing provisions of the newly adopted constitution, one elevating Judge Rose to the status of a circuit judge as of January 1, 1973, and the other prohibiting judicial service by persons who had attained his then age. The Court reconciled these two provisions to prevent the ridiculous result of “elevating” a judge to a position he was instantly ineligible to occupy. Obviously the problem there has no parallel here.

In Johnson v. Trader, 52 So.2d 333 (Fla.1951), the Court refused to apply a city ordinance enacted to prohibit civil service employees from engaging in a liquor business to a Pensacola policeman who owned a liquor enterprise, without a reasonable post-adoption period for compliance. In Johnson, of course, the Court was forced to resolve a practical dilemma posed by the precipitous enforcement of the municipality’s reasonable regulation governing the conduct of civil service employees. In so doing, the Court fashioned an equitable resolution for the parties grounded on the factual peculiarities of the manner in which the city had handled its transactions with officer Johnson, and on the need for concern with his accrued pension benefits. No similar due process concern or vested property right affects Myers’ situation.

In Hall v. Strickland, 170 So.2d 827 (Fla.1964), the Court upheld a Dade County charter amendment which terminated the offices of certain incumbent judges whose terms had not expired. In Hall the Court was confronted with two questions: whether a constitutional ban against shortening the term of an incumbent judge was applicable at all to a court created by municipal ordinance, and whether the municipality’s particular court was abolished or its incpm-bent judges removed. By deciding that the constitutional prohibition did not apply at all because of the particular court involved, and that the court was abolished rather than its judges removed, the Court avoided issues (like the one before us) relative to the abridgement of an incumbent officeholder’s term.

More akin to the present situation are Holley v. Adams, 238 So.2d 401 (Fla.1970), and State ex rel. Reynolds v. Roan, 213 So.2d 425 (Fla.1968). In Reynolds the Court refused to allow a school board to oust its appointed superintendent—an attempt grounded on a constitutional amendment directing that school board superintendents shall serve at the pleasure of their appointing boards — when the incumbent superintendent had received a pre-amendment board appointment for a fixed term extending beyond the amendment’s effective date. The Court’s opinion discussed to some extent whether superintendent Reynolds’ appointed term was definite, and thereby continuable to the end of its pre-amendment contract duration, or indefinite, and thereby subject to the newly-created termination authority. The Court’s decision hinged, however, on an absence of express language in the constitutional amendment directing its application to existing contracts.

“[A]n intention to apply the shortened term of an office, or the changed qualifications thereof, to an incumbent, resulting in his ouster from the office before the end of his term, must be clearly expressed in the statute or constitutional amendment making the change before it will be given that effect.”

In Holley, by contrast, the Court did apply a newly-enacted statute to incumbent officeholders — forcing a direct curtailment of the term of office — but nowhere identified the presence of an unambiguous directive in the statute to the effect that it should apply to incumbents. Apparently, the Court there approached the applicability problem from another perspective. By first concluding that the so-called “resign-to-run” statute did not affect the qualifications of office or shorten by its operation the term of office, the Court eliminated any possible reasons that the statute should not apply to incumbents. By this approach the need to consider an expression of intent in the statute became unnecessary, since the impermissible feature of statutory or constitutional change — an effective “ouster” — was not present in the enactment.

Whether we approach the applicability of Section 8(e) from the perspective of Reynolds or Holley, the conclusion is the same — Section 8(e) should not be considered applicable to persons in office on its effective date.

A Reynolds approach would assume for the purpose of discussion an effective ouster by the constitutional amendment and direct our attention to whether the amendment on its face expresses an intention that it be applied to those in office. If not, the amendment would not be so applied. There can be no disagreement that Section 8(e) on its face, or even in conjunction with other provisions of the Sunshine Amendment, does not express a clear and unequivocal intention to apply its strictures to existing officeholders. Compare the expressions of intended application in the provisions construed in Hall v. Strickland, 170 So.2d 827 (Fla.1964), and in Klein v. Schulz, 87 So.2d 406 (Fla.1956). Under a Reynolds approach, then, even assuming that Section 8(e) affects the qualifications of office, the absence of clear language applying it to incumbents prevents its applicability to Myers.

A Holley approach focuses attention directly on the question assumed under a Reynolds approach — whether the constitutional change has abolished the office, changed the qualifications of office, or imposed new and onerous requirements on some or all of the incumbents who desire to continue in office. The resign-to-run law considered in Holley led the Court to conclude that neither an ouster nor an impermissible burden on officeholding was imposed. The same cannot be said of Section 8(e). To apply newly-created professional limitations on a part-time Florida legislator in the midst of his term of office obviously defeats expectations honestly arrived at when the office was initially sought. The office itself is not abrogated or its duties altered, of course, but the privileges of officeholding are no less impaired by curtailing non-legislative employment opportunities than they would be if the office was made full-time and outside employment prohibited altogether. The abridgement in either case is tantamount to changing the qualifications of office. There was absolutely no employment limitation when the term of office was sought.

We hold, therefore, that Section 8(e) does ' not apply to affected officials — legislators and statewide elected officers — who held office on its effective date. Myers, therefore, is not barred from practicing before the Public Service Commission for compensation on behalf of others during his senatorial term which began prior to January 4, 1977. The order of the Public Service Commission is quashed.

It is so ordered.

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

      . Myers, who was first elected to his senatorial seat on November 5, 1968, has specialized in a public utility law practice, which often requires representation before the Public Service Commission. He is registered with the Commission as a “class A” practitioner under its Rule 25-2.-13, Florida Administrative Code.

      . Art. II, § 8, Fla.Const. This provision was proposed by the governor’s initiative petition in July 1976 and approved by the voters of Florida on November 2, 1976. It became effective on January 4, 1977. For additional history, see Williams v. Smith, 360 So.2d 417 (Fla.1978).

      . Article II, Section 8(f) of the Constitution states:
      “There shall be an independent commission to conduct investigations and make public reports on all complaints concerning breach of public trust by public officers or employees not within the jurisdiction of the judicial qualifications commission.”

      . Generally speaking, administrative agencies are not the appropriate forum in which to consider questions of constitutional import. See Department of Revenue v. Amrep Corp., 358 So.2d 1343 (Fla.1978); Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc., 361 So.2d 695 (Fla.1978); Department of Revenue v. Young American Builders, 330 So.2d 864 (Fla. 1st DCA 1976).

      . The artificiality of this declaratory proceeding is apparent from the Commission’s “decision” that it is a judicial tribunal and its “order” that it is not.

      . 1976 Op. Att’y Gen. Fla. 076-242 (Dec. 22, 1976).

      . § 112.322(5), Fla.Stat. (1975), now appearing as § 112.322(6), Fla.Stat. (1977).

      . See State ex rel. Gibbs v. Couch, 139 Fla. 353, 376, 190 So. 723, 732 (1939) (Whitfield, J., concurring); Mugge v. Warnell Lumber & Veneer Co., 58 Fla. 318, 321, 50 So. 645, 646 (1909); Halle v. Einstein, 34 Fla. 589, 604, 16 So. 554, 558-59 (1894).

      . As to the governor’s role as draftsman of the “Sunshine Amendment,” see Williams v. Smith, 360 So.2d 417 (Fla.1978).

      . See, for example, Hillsboro Island House Condominium Apartments, Inc. v. Town of Hillsboro Beach, 263 So.2d 209, 213 (Fla.1972). In general, a dictionary may provide the popular and common sense meaning of terms presented to the voters.

      . Definitions supplied by Black’s and Ballentine’s law dictionaries are quite similar. See Ballentine’s Law Dictionary 684, 1300 (3d ed. 1969); Black’s Law Dictionary 983-84, 1677 (4th ed. 1968).

      . See Webster’s at 1143.

      . Gray v. Bryant, 125 So.2d 846 (Fla.1960); State ex rel. McKay v. Keller, 140 Fla. 346, 191 So. 542 (1939).

      . Two other alternatives—to hold that the term “judicial tribunal” means either only those courts created by Article V of the Florida Constitution or all agencies which possess quasi-judicial power within the contemplation of Article V, Section 1 of the Florida Constitution—are not urged by either party. In light of the explanatory material which accompanied the initiative petition, we find no basis to adopt either of these more extreme positions, although there is some intellectual appeal to the former.

      . Scholastic Systems, Inc. v. LeLoup, 307 So.2d 166, 170 (Fla.1974). At oral argument, the attorney general proposed as a possibility that we overrule Scholastic Systems and pare back the term “judicial tribunal” to courts alone. The posture of this case obviously precludes that possibility.

      . Agencies which Myers identified in this category include, at least, the Public Employees Relations Commission and the Career Service Commission.

      . We recognize that the judicial branch of government performs some duties which conceptually could be classified as legislative or quasi-legislative in nature, such as the rule-making power conferred in Article V, Section 2(a) of the Constitution, and the admission and discipline of attorneys conferred in Article V, Section 15. The administrative responsibilities for adopting rules of practice and procedure for the courts of the state, and for controlling the flow of persons authorized to appear before the courts, are intimately connected with the exercise of courts’ exclusively judicial activities. As such they are incidental, but indispensable, to the mission of the courts. They have no other independent significance, however, and to this extent courts differ from most executive and quasi-legislative bodies which exist for reasons other than simply to resolve disputes.

      . Illustrative of the problem are In re Advisory Opinion to the Governor, 223 So.2d 35 (Fla.1969); Greyhound Lines, Inc. v. Mayo, 207 So.2d 1 (Fla.1968); Florida East Coast Ry. v. State, 79 Fla. 66, 83 So. 708 (1920).

      . See Florida Motor Lines, Inc. v. Railroad Comm’rs, 100 Fla. 538, 129 So. 876 (1930), where, in discussing the authority of the Commission’s predecessor, we carefully differentiated the exercise of quasi-judicial authority from the judicial powers of the courts. And see Canney v. Board of Public Instruction, 278 So.2d 260 (Fla.1973).

      . The many non-judicial functions of the Public Service Commission prescribed in the Florida Statutes include the authority to franchise and regulate ferries and toll bridges (ch. 347), and extensive rate-making and regulatory authority over railroads and common carriers (ch. 350), telegraph and telephone companies (ch. 364), private wire services and the statewide emergency telephone system (ch. 365), public utilities supplying electricity or gas (ch. 366), public water and sewer systems (ch. 367), and gas transmission or distribution facilities (ch. 368).

      . We note that a legal background is not required for persons seeking to serve as a public service commissioner. Compare §§ 440.45(1) and 20.17(3)(a)(1), Fla.Stat. (1977), requiring for industrial claims judges and industrial relations commissioners, respectively, virtually the same qualifications as for circuit and district court judges. And see In re Workmen’s Compensation Rules of Procedure, 343 So.2d 1273 (Fla.1977); Scholastic Systems, Inc. v. LeLoup, 307 So.2d 166 (Fla.1974); In re Florida Workmen’s Compensation Rules of Procedure, 285 So.2d 601 (Fla.1973).

      . Although this issue was not originally argued by the parties, the Court on its own motion directed that the parties file supplementary briefs addressing this question. See Fla.R. App.P. 9.040(a). As noted earlier, Myers has served in the Florida Senate continuously since 1968. His present four-year term began on November 2, 1976.

      . In its entirety, Article II, Section 8(e), reads: “No member of the legislature or statewide elected officer shall personally represent another person or entity for compensation before the government body or agency of which the individual was an officer or member for a period of two years following vacation of office. No member of the legislature shall personally represent another person or entity for compensation during term of office before any state agency other than judicial tribunals. Similar restrictions on other public officers and employees may be established by law.”

      . The retroactive application of a constitutional amendment to pre-adoption conduct was summarily rejected in Baillie v. Town of Medley, 262 So.2d 693, 697 (Fla. 3d DCA 1972), appeal dismissed, 279 So.2d 881 (Fla.1973).

      . The labels “retroactive” and “prospective” do not aid our analysis.
      “In dealing with the problem of retroactivity, it is extremely difficult to establish definite criteria upon which court decisions can be foretold. A statute must not act unreasonably upon the rights of those to whom it applies, but what is reasonable and what is unreasonable is difficult to state in advance of actual decisions. ‘. . . [T]he method to be pursued is not the unerring pursuit of a fixed legal principle to an inevitable conclusion. Rather it is the method of intelligently balancing and discriminating between reasons for and against.’ It is misleading to use the terms ‘retrospective’ and ‘retroactive,’ as has sometimes been done, to mean that the act so labelled is unconstitutional, since the question of validity rests on further subtle judgments concerning the fairness or unfairness of applying the new statutory rule to affect interests which accrued out of events which transpired and under circumstances which obtained when a different prior rule of law was in force .
      One of the fundamental considerations of fairness recognized in every legal system is that settled expectations honestly arrived at with respect to substantial interests ought not be defeated. There is evidence that results achieved through application of judicial instinct, manifested in the pattern of decisions on retroactivity problems, are perhaps best explainable in terms of this fundamental principle of justice.” 2 Sands, Sutherland Statutory Construction § 41.05, pp. 259-61 (4th ed. 1973).
      If there is an appropriate characterization, Florida case law seems to describe the application of a constitutional amendment to conduct following its effective date as prospective in nature. See State ex rel. Judicial Qualifications Commission v. Rose, 286 So.2d 562, 563 (Fla.1973). And see Department of Health & Rehabilitative Services v. Harrell, 258 So.2d 340, 344 (Fla. 1st DCA 1972), cert. discharged, 272 So.2d 151 (Fla.1973), using the same term in the context of conduct following a statutory change.

      .286 So.2d at 563.

      . 52 So.2d at 336-37.

      . Both the Rose and Reynolds decisions express the view that a constitutional provision can operate to eliminate an office or a right, provided the amendment unambiguously expresses that intention. The Hall decision illustrates office abolition.

      . 213 So.2d at 428.

      . See Holley, 238 So.2d at 405-06, as to the distinction between the eligibility for office and the qualifications of office.

      . “[T]he reduction of the term, if any, is caused solely by the act of the office holder in abandoning the office which he presently holds.” 238 So.2d at 407.

      . We express no view on the applicability of a constitutional or statutory change to persons who assume office simultaneously with the effective date of the change.

      . Indeed, the last sentence of Section 8(e) speaks prospectively of action the legislature may take to expand that provision’s coverage to other governmental personnel.

      . New and onerous requirements for office-holding may be considered the equivalent of an ouster. See 238 So.2d at 406-07.

      . “[The resign-to-run statute] is not a burden imposed upon the office of circuit judge presently held by Holley. His term of office as circuit judge remains as before and this right is affected only by the voluntary act of the incumbent in office.” 238 So.2d at 406.

      . See Sands, note 25 above.

      . See, for example, Art. V, § 13, Fla.Const., prohibiting certain outside employment for full-time judges.

      . Not every statutory or constitutional impairment in the expectations or in the status of officeholders, either in their official or private capacity, will operate only as to future officeholders. This case does not present an occasion to announce other circumstances in which an impairment would be considered tantamount to an ouster, to use the Reynolds phraseology. Wherever a line may ultimately be drawn to separate permissible impairment from that which is impermissible, it is clear that this constitutional change so substantially abrogates Myers’ status as a part-time legislator and as a member of The Florida Bar that it would fall well outside the established boundary.

      .The inapplicability of the “after term” ban of Section 8(e) to persons in office on its effective date rests on the same policy considerations as the “during term” ban. The joinder of these prohibitions in the same constitutional paragraph, designed as we have indicated to prevent conflicts of private and public interests, quite plainly stems from the same ethical considerations and requires parallel treatment. The Standards and Conduct Committee of the Florida House of Representatives reached this same conclusion in an opinion concerning the applicability of the “after term” ban to House members in office on its effective date. Opin. No. 39, H.R.J., Reg. Sess. 888 (1978).


source: Caselaw Access Project

license: Public Domain

text:
    Roland GALLIE, Petitioner, v. Louis L. WAINWRIGHT, etc., Respondent.
    No. 52749.
    Supreme Court of Florida.
    Sept. 14, 1978.

      Ray Sandstrom of Sandstrom & Haddad, Fort Lauderdale, and Dominic P. Gentile of National College of Criminal Defense Lawyers and Public Defenders, University of Houston, Houston, Tex., for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler and Robert L. Bogen, Asst. Attys. Gen., West Palm Beach, for respondent.
   ENGLAND, Chief Justice.

Roland Gallie was convicted of possessing cocaine and sentenced to three years imprisonment. To avoid immediate incarceration he requested bond pending his appeal of that conviction. The trial court’s denial of bond precipitated Gallie’s petition for a writ of habeas corpus in this Court, asking that we allow and set bond for him. We have jurisdiction. Article V, Section 3(b)(6), Florida Constitution.

The state objected to any bond for Gallie on the basis of Section 903.132(1), Florida Statutes (1977), and Florida Rule of Criminal Procedure 3.691(a), both of which provide that bond pending an appeal is not available to one convicted of a felony who has previously been convicted of another felony, and whose civil rights have not been restored. Gallie, it seems, had been convicted of a felony in 1969. He had served his full sentence and been released in 1973, but he had never sought or obtained a formal restoration of his civil rights from Florida’s clemency authority, the governor and cabinet. Gallie argued, however, that in 1975 the governor and cabinet adopted a rule which provides for an automatic restoration of civil rights upon final release of a prisoner, so that he met all the eligibility requirements for bond pending appeal. The trial judge rejected Gallie’s request for bond, despite his assertion, on the ground that the governor’s and cabinet’s automatic restoration rule invalidly abdicates constitutional responsibility to evaluate individually each applicant for a restoration of civil rights. (The trial judge also expressed uncertainty as to whether the rule would operate retroactively on a felony conviction obtained prior to its effective date, and noted that neither the bond-denial statute nor rule would have any practical effect if the automatic restoration rule were given effect.)

We considered Gallie’s contentions concerning his alleged unlawful detention to be sufficiently compelling to require a written response from the state, and we allowed oral argument on the issues. Af-ter respondent had filed a return to the writ of habeas corpus, Gallie called to the Court’s attention the decision in Escandar v. Ferguson, 441 F.Supp. 53 (S.D.Fla.1977), which addressed certain of the constitutional questions raised by Gallie’s petition. So that these issues could be more fully developed, we directed both parties to submit supplemental briefs on the constitutional questions. Having now reviewed the arguments of the parties on all points presented, we conclude that Gallie is not entitled to the relief requested on any grounds.

Gallie first asserts that he is entitled to an automatic restoration of his civil rights under Sections 940.05 and 940.06, Florida Statutes (1975), both of which have been in effect since 1969. The former states that convicted felons “may” be entitled to a restoration of civil rights upon completion of their prison terms, and the latter directs that the Parole and Probation Commission “shall” submit to the governor and cabinet the names of persons eligible under Section 940.05. The maximum relief which Gallie could obtain from this Court under these provisions is a writ of mandamus commanding the Commission to perform its statutory duty of submitting his name to the clemency official. Our directive would not assure a restoration of Gallie’s civil rights, however, since Rule 6B of the Rules of Executive Clemency now in effect requires an “application” for a restoration of rights by any person released from jail prior to November 1,1975, the effective date of the rules. Gallie admittedly has not filed such an application. We decline to issue a writ of mandamus to a state agency to perform a ministerial act which Gallie could himself perform under applicable clemency procedures.

Gallie’s second point here — reliance on the governor’s and cabinet’s automatic restoration rule — is met with the state’s assertion and the trial court’s determination that the rule is in violation of the Constitution. Once again we decline to address that issue because Rule 6B, by its terms, requires an application for a restoration of rights. Since Gallie admits that he had not complied with that procedural prerequisite, we do not have a proper case in which to consider the constitutional question posed.

Finally, Gallie challenges the constitutionality of the statute and rule which prohibit bail pending appeal for previously convicted felons, principally on the grounds that they deny him equal protection and due process of law as guaranteed by the Constitution of the United States and of the State of Florida. Relying heavily on the recent United States District Court decision in Escandar v. Ferguson, 441 F.Supp. 53 (S.D.Fla.1977), he argues that these provisions violate equal protection by creating a classification that affects his fundamental rights in a way which is not the least restrictive means of effectuating the state’s objective, and that they deny due process by establishing an irrebuttable presumption that is arbitrary and unreasonable.

In Eseandar, the federal district court was confronted with an attack on the constitutional validity of Article I, Section 14 of the Florida Constitution and Florida Rule of Criminal Procedure 3.130(a), which together establish a right to reasonable bail before a conviction unless the accused is charged with “a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great.” In granting the petitioners’ request for a writ of habeas corpus, the court concluded that the Florida courts’ interpretation of those provisions as denying all discretion to allow bail in such cases rendered them unconstitutional on federal equal protection and due process grounds.

As to equal protection, the court reasoned that because the constitutional provision and procedural rule create a classification which denies the accused in such cases equal treatment with that afforded other criminal defendants, and because that classification affects certain fundamental rights — namely, the presumption of innocence and the right to a fair trial (through ability to assist in the preparation of his defense) — the apparent prohibition of those provisions could “only be upheld if it promotes a compelling governmental interest and is the least restrictive means of effectuating this compelling governmental interest.” The court then determined that although the state has a compelling interest in assuring the presence of the accused at trial, there exists a less restrictive means of achieving that interest — that is, by requiring the trial judge to hold an evidentiary hearing for the determination of whether on the totality of the circumstances the defendant should be admitted to bail. In addition, the court found that because one who is convicted of first degree murder and sentenced to life imprisonment is eligible for bond pending appeal under Florida law, it is, “as a matter of law, . totally unreasonable to deny bond to a defendant awaiting trial on a life felony charge where the proof is evident and the presumption thereof great, and then to allow bond to that same defendant after he has been proven guilty beyond a reasonable doubt.”

Turning to the due process argument, the Escanciar court found that the Florida procedure denies the accused any opportunity to demonstrate that he would be a good bail risk, thereby establishing an irrebuttable presumption that defendants in such cases will fail to appear in court when their presence is required. Relying on the “irrebutta-ble presumption” test employed by the United States Supreme Court to invalidate certain state statutes in Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974); Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973); and Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), the federal district court ruled that the irre-buttable presumption created by Florida’s Constitution and criminal rule “is not ‘necessarily or universally true in fact’, and the State, by affording a hearing on that issue, has ‘reasonable alternative means of making the crucial determination.’” The court thus concluded that “[s]uch an irre-buttable presumption sweeps too broadly, and thereby violates the Due Process Clause of the Fourteenth Amendment.”

Gallie contends that although different provisions relating to bail are involved in the present case, the reasoning of the Es-candar court is equally applicable to the statute and rule challenged here, and should be considered persuasive authority on the issues before this Court. The state argues that Escandar was wrongly decided, but that even if correct it is inapplicable here because fundamentally different principles and policy considerations apply when bail is sought after the accused has been adjudicated guilty of a second or subsequent felony. We agree.

The predecessor to Section 903.132(1) was the object of an unsuccessful attack in Greene v. State, 238 So.2d 296 (Fla.1970), in which this Court analogized the statute to habitual offender acts and disposed of the equal protection challenge as being “without merit.” Assuming for the sake of argument that the equal protection analysis utilized in Escandar is applicable here, it still does not avail Gallie inasmuch as the statute and rule which preclude bond pending appeal deny him no fundamental rights.

In the first place, those fundamental rights on which the court in Escandar predicated its decision — the presumption of innocence and the right to participate in the preparation of a defense to ensure a fair trial — are obviously not present where the defendant has already been tried and convicted. Additionally, we cannot accept Gal-lie’s premise that he has a fundamental right to be heard on the issue of bail risk when it is well-established that there is no absolute constitutional right to bond pend-

ing appeal of any state criminal conviction, whether misdemeanor or felony, first or subsequent. Since no fundamental right is affected, and because Gallie concedes that the state's interest in assuring the presence of the accused at the conclusion of the appeal is a compelling interest, it is clear that these provisions do not contravene any constitutional notions of equal protection.

The argument that this statute and rule violate due process by creating an impermissible “irrebuttable presumption” has not previously been considered by this Court, although we have recently dealt with the “irrebuttable presumption” doctrine in criminal cases striking down Florida’s statutory bifurcated insanity proceeding, State ex rel. Boyd v. Green, 355 So.2d 789 (Fla. 1978), and upholding the statutory scheme regulating the practice of massage for a fee, State v. Bales, 343 So.2d 9 (Fla.1977). It is undeniable that Section 903.132(1) and Rule 3.691(a) create an irrebuttable presumption in the sense that they establish one state of facts (a felony conviction for one previously convicted of a felony whose civil rights have not been restored) as conclusive proof of another fact (unreasonable bail risk), and deny any opportunity to disprove the presumed fact. It is equally clear, however, that our inquiry does not end there, for not all conclusive presumptions offend due process. Rather, our determination as to the constitutionality of these bond-denial provisions requires an examination and application of the conclusive presumption doctrine as it has evolved through the decisions of the United States Supreme Court.

Although first employed by the Supreme Court half a century ago to invalidate classifications in the tax laws, the so-called conclusive or irrebuttable presumption doctrine did not fully emerge as an instrument of constitutional adjudication until the last decade. In a series of decisions beginning with Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), the Court applied the test to invalidate on due process grounds a variety of statutory and regulatory measures which established permanent and conclusive presumptions. Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) (presumption of non-residency for purpose of voting eligibility if durational waiting-period requirement is not satisfied); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (presumption that unwed fathers are unfit to rear children); Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973) (presumption that non-resident status at time of application for admission to state university continues throughout the entire period of attendance); United States Department of Agriculture v. Murry, 413 U.S. 508, 93 S.Ct. 2832, 37 L.Ed.2d 767 (1973) (presumption that a household is not needy for food stamp purposes if it includes persons over 18 years of age that were claimed as dependents by taxpayers who are themselves ineligible for food stamps); Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974) (presumption that a pregnant teacher is physically incapable of working for five months before expected birth and at least three months after birth). The standard which the Court utilized during this period, as stated in Vlandis, was that a statute embodying an irrebuttable presumption would be deemed invalid “when that presumption is not necessarily or universally true in fact, and when the State has reasonable alternative means of making the crucial determination.”

Urging the application of the Vlandis test here, Gallie asserts that the presumption that previously convicted felons whose civil rights have not been restored present an unreasonable bail risk is “not necessarily or universally true in fact,” and that Florida has a “reasonable alternative means of making the crucial determination” through individualized evidentiary hearings conducted by the trial judge when bond pending appeal is requested after the subsequent felony conviction. The state, on the other hand, contends that the strict standard enunciated in Vlandis has been eroded by subsequent United States Supreme Court decisions which have substituted a mere “reasonableness” test and limited operation of the more strict conclusive presumption doctrine to invalidate only those laws which affect some constitutionally preferred right or privilege. Our review of the authorities leads us to conclude that the state is correct.

In Marshall v. United States, 414 U.S. 417, 94 S.Ct. 700, 38 L.Ed.2d 618 (1974), the Court upheld a federal statute which excluded persons with two prior felony convictions from discretionary rehabilitative commitment. Rejecting Justice Marshall’s argument in dissent that individualized hearings should be required because the statute “amounts to a conclusive and irrebuttable presumption” impermissibly affecting the prisoner’s “important” interest in personal liberty, the majority reasoned that it need only determine whether Congress had a rational basis for the enactment, and concluded that the denial of eligibility for treatment could be sustained on several legitimate grounds.

The implicit retreat from Vlandis signalled in Marshall became more apparent in Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). There the Court reversed a lower court’s invalidation of a law which conclusively denied Social Security benefits to surviving dependents who were related to the wage-earner for less than nine months prior to his death. Although acknowledging that the statute contained an irrebuttable presumption, the Court in Weinberger examined at length the strict application of the test in previous decisions and concluded that

“extension of the holdings of Stanley, Vlandis, and LaFleur . . . would turn the doctrine of those cases into a virtual engine of destruction for countless legislative judgments which have heretofore been thought wholly consistent with the Fifth and Fourteenth Amendments to the Constitution.”

Distinguishing those earlier cases on the ground that they merited closer scrutiny because each involved some “constitutionally protected status,” the Court proceeded to fashion a more relaxed standard for assessing conclusive presumption claims, reflecting greater deference to legislative discretion:

“The question is whether Congress, its concern having been reasonably aroused by the possibility of an abuse which it legitimately desired to avoid, could rationally have concluded both that a particular limitation or qualification would protect against its occurrence, and that the expense and other difficulties of individual determinations justified the inherent imprecision of a prophylactic rule.”

As we have previously noted, a convicted defendant enjoys no “constitutionally protected status” with regard to bail pending appeal. It follows therefore that the proper test to be applied in the present case is not the severe standard of Vlandis, but the more lenient “reasonableness” criterion announced in Weinberger, and in that regard we have no doubt that the statute and rule challenged here represent a rational means of achieving a legitimate governmental objective.

The legislature enacted Section 903.132 for the express purpose of providing “a means of protecting the citizens of this state from repeat offenders.” In Greene v. State, 238 So.2d 296, 299 (Fla.1970), we observed as to the predecessor of this statute:

“It is obvious that the statute complained of rests upon, among other grounds, the known propensity of an habitual offender to continue a pattern of criminal activity of a serious nature. Denial of his release on bail after conviction pending appeal because of the likelihood that he will be a poor bail risk cannot be said to be an arbitrary or unreasonable action on the part of the state.”

We find nothing irrational about the legislature’s judgment that the likelihood of further criminal activity or flight from prosecution in the case of repeat felony offenders whose civil rights have not been restored is sufficiently great that the public interest could be effectively protected only by an absolute prohibition against their release after conviction. Gallie has offered no .convincing reason why our conclusion in Greene should not apply with equal force to the provisions presently in controversy; on the contrary, the subsequent Supreme Court decision in Marshall is persuasive authority reinforcing the proposition that it is not unreasonable to attach a conclusive presumption of high risk of non-cooperation to previously convicted felons. We believe these authorities are dispositive on this issue.

With reference to the other facet of the Weinberger test, we do not think it arbitrary in this case for the legislature to have found that “the expense and other difficulties of individual determinations justified the inherent imprecision of a prophylactic rule.” It may be true, as Gallie asserts, that under some circumstances a person who might otherwise qualify for bail if given an opportunity to be heard will, at least temporarily, be unfairly detained as a result of these provisions. We must recognize, however, that the Constitution does not invariably require, and practical considerations do not always realistically permit, such absolute precision to be demanded of the legislature. While individualized hearings would undoubtedly culminate in justice for some, we cannot say that the legislature was unreasonable in determining that because of the time and expense required for such hearings (compounded by the likelihood that the mere possibility of release would encourage appellants to request bail in virtually every case), and in view of the potential threat to society which would inevitably result from the release of some undeserving reconvicted felons, the need for a prophylactic rule outweighs the limited detrimental consequences for those unfortunate few. Obviously, the evaluation of an individual as a bail risk, which in practice is really little more than an attempt to predict behavior, is at best an uncertain task, and the costs of a misjudgment may well be measured in lives as well as time, money, and frustrated prosecutions.

For these reasons, we hold that the state could reasonably classify previously convicted felons whose civil rights have not been restored differently from other criminal defendants for purposes of determining entitlement to bail pending appeal, and that the legislature could establish an irrebutta-ble presumption that these persons as a class represent an unreasonable bail risk so as to be denied bail without a hearing. Section 903.132(1) and Rule 3.691(a) are constitutionally valid.

The relief requested by Gallie must, therefore, be denied, and the writ of habeas corpus previously issued in this cause is discharged.

It is so ordered.

BOYD, OVERTON and ALDERMAN, JJ., concur.

ADKINS and HATCHETT, JJ., concur in result only.

      . Section 903.132(1), as amended by Chapter 76-138, Laws of Florida, and Rule 3.691(a), as amended in The Florida Bar re Florida Rules of Criminal Procedure, 343 So.2d 1247, 1262 (Fla.1977), both provide in part that
      “no person may be admitted to bail upon appeal from a conviction of a felony unless the defendant establishes that the appeal is taken in good faith, on grounds fairly debatable, and not frivolous; provided that in no ease shall bail be granted if such person has previously been convicted of a felony, . •. . and such person’s civil rights have not been restored . . .

      . Art. IV, § 8(a), Fla.Const.

      . Rule 6A [formerly 9A] of the Rules of Executive Clemency provides:
      “When a person receives final release from the Florida Parole and Probation Commission, Department of Offender Rehabilitation or county jail, his civil rights shall be automatically reinstated, except for his right to own, possess or use a firearm.”

      . We expressed no opinion on the validity of the automatic restoration rule when we recently considered its effect on bar admittance. In re Florida Board of Bar Examiners, 341 So.2d 503, 505 (Fla.1976).

      . By an amendment to the petition filed on the day we directed the state to respond, Gallie also asks us to rule that the information by which he was charged was deficient. He correctly cites Gibbs v. Mayo, 81 So.2d 739 (Fla.1955), for the proposition that an indictment or information may be challenged by petition for a writ of habeas corpus. The state has not responded to this challenge, however, inasmuch as we directed a return only on the original issues asserted by Gallie. Nonetheless, we have analyzed the alleged infirmity in the information and hold that it is not defective.

      . See Fla.App.R. 3.7(d); Langford v. King Lumber & Mfg. Co., 127 Fla. 111, 172 So. 686 (1937).

      . Ch. 69-29, Laws of Fla.

      . Under Article V, Section 2(a), Florida Constitution, we could treat the request for habeas corpus as a request for the appropriate form of relief.

      . The full text of the Rules of Executive Clemency is reported as an appendix to our decision in Sullivan v. Askew, 348 So.2d 312, 319 (Fla.1977).

      . The 1974 legislature’s express attempt to restore civil rights by operation of law upon a felon’s completion of his sentence was considered an unconstitutional invasion of the powers assigned to the executive branch of government. In re Advisory Opinion of the Governor Civil Rights, 306 So.2d 520 (Fla.1975). Undoubtedly, this advisory opinion led to the adoption of an automatic restoration rule by the governor and cabinet.

      . See note 4 above.

      . See, e. g., Jones v. City of Sarasota, 89 So.2d 346 (Fla.1956).

      . U.S.Const. amend. XIV; Art. I, §§ 2 and 9, Fla.Const. Gallie also asserts that these provisions violate the Eighth Amendment’s prohibition against excessive bail as applied to the states through the Fourteenth Amendment, and suggests that the statute represents an impermissible encroachment on the judicial power by the legislature in violation of Article II, Section 3, Florida Constitution. Even assuming, however, that the Eighth Amendment is applicable to the states, see Schilb v. Kuebel, 404 U.S. 357, 365, 92 S.Ct. 479, 30 L.Ed.2d 502 (1971), it is clear that “there is no absolute federal constitutional right to bail after a state conviction.” Roberson v. Connecticut, 501 F.2d 305, 308 (2d Cir. 1974). See also Hamilton v. New Mexico, 479 F.2d 343 (10th Cir. 1973); Bloss v. Michigan, 421 F.2d 903 (6th Cir. 1970); United States ex rel. Fink v. Heyd, 408 F.2d 7 (5th Cir. 1969). In any event, we have previously considered and rejected both of these contentions in Greene v. State, 238 So.2d 296 (Fla.1970).

      .Art. I, § 14, Fla.Const. states:
      “Until adjudged guilty, every person charged with a crime or violation of municipal or county ordinance shall be entitled to release on reasonable bail with sufficient surety unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great.”
      Fla.R.Crim.P. 3.130(a) provides in part:
      “All persons in custody for the commission of an offense unless it is a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great shall be entitled as of right to be admitted to bail before conviction.”

        Of course, these provisions are expressly limited to preconviction bail requests, and thus have no bearing on Gallie’s claim.

      . The petitioners in Escanciar had been denied bail by the trial judge on the ground that the constitutional provision and criminal rule completely divested the court of jurisdiction or power to grant such relief, and their petition for a writ of habeas corpus or mandamus in the Third District Court of Appeal, treated as a motion to review denial of bail, was denied by that court after a hearing. 441 F.Supp. at 56.

      . 441 F.Supp. at 58.

      . Except when requested by one convicted of a capital offense, or by one convicted of a felony who has a prior felony conviction and whose civil rights have not been restored, Rule 3.691(a) permits the granting of bail pending appeal at the discretion of either the trial or appellate court. See also Wells v. Wainwright, 260 So.2d 196 (Fla.1972); Younghans v. State, 90 So.2d 308 (Fla. 1956); Hedden v. State, 275 So.2d 52 (Fla. 2d DCA 1973), cert. denied, 419 U.S. 1031, 95 S.Ct. 513, 42 L.Ed.2d 306 (1974).

      . 441 F.Supp. at 59.

      . Id. at 59-60.

      . Id. at 59.

      . § 903.131, Fla.Stat., enacted by Ch. 69-307, Laws of Fla., and codified as § 903.132, Fla.Stat. (1969), provided:
      “No person may be admitted to bail upon appeal from a conviction of a felony if such person has previously been convicted of a felony, the commission of which occurred prior to the commission of the subsequent felony, and such person’s civil rights have not been restored.”
      The inherent conflict between this prohibitive statute and our Court rule, which made bail in such cases discretionary, resulted in rulings by the First and Second District Courts of Appeal that the rule took precedence over the statute because bail is a procedural matter. Rolle v. State, 314 So.2d 624 (Fla. 1st DCA 1975); Bamber v. State, 300 So.2d 269 (Fla. 2d DCA 1974). It was expressly in response to these decisions that the legislature enacted Chapter 76-138, which revised Section 903.132 into its present form and repealed Rules 3.130(a) and 3.691(a) “insofar as they are inconsistent with” the amended statute. We have since acted to conform those rules. The Florida Bar re Florida Rules of Criminal Procedure, 343 So.2d 1247, 1250, 1262 (Fla.1977).

      . 238 So.2d at 300.

      . We have recently held that where “no fundamental right or suspect classification is at issue ., all we need find is the existence of a rational basis for [an] attempted legislative exercise of the State’s police power.” State v. Bales, 343 So.2d 9, 11 (Fla.1977). Gallie does not assert that the classification created by these provisions — that is, the differential treatment of repeat felony offenders whose civil rights have not been restored — is in any way “suspect” in the constitutional sense.

      . For a survey of some conclusive presumptions which will withstand due process scrutiny, see Ackerman, The Conclusive Presumption Shuffle, 125 U.Pa.L.Rev. 761, 799-808 (1977).

      . See Heiner v. Donnan, 285 U.S. 312, 52 S.Ct. 358, 76 L.Ed. 772 (1932); Hoeper v. Tax Comm'n, 284 U.S. 206, 52 S.Ct. 120, 76 L.Ed. 248 (1931); Schlesinger v. Wisconsin, 270 U.S. 230, 46 S.Ct. 260, 70 L.Ed. 557 (1926).

      . 412 U.S. at 452, 93 S.Ct. at 2236.

      . 18 U.S.C. § 4251(f)(4), a provision of the Narcotic Addict Rehabilitation Act of 1966, provides:
      “(f) ‘Eligible offender’ . . . does not include—
      * * * * * *
      (4) an offender who has been convicted of a felony on two or more prior occasions.”

      . 414 U.S. 417, 435, 94 S.Ct. 700, 710 (Marshall, J., dissenting).

      . Noting that “legislative classifications need not be perfect or ideal,” the Court found that Congress could have grounded its discriminatory policy decision on, among other reasons, the probability that persons with two or more felony convictions were “more ‘hardened’ and thus a greater potential danger to society on early release,” and that “the fact of two prior felony convictions may be said to evidence a lesser susceptibility of deterrence.” 414 U.S. at 428-30, 94 S.Ct. at 707-708.

      . 422 U.S. at 772, 95 S.Ct. at 2470. This sentiment found expression not only through Justice Rehnquist’s consistent opposition to the conclusive presumption doctrine, see his dissenting opinions in LaFleur, 414 U.S. 632, 657, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974); Murry, 413 U.S. 508, 522, 93 S.Ct. 2832, 37 L.Ed.2d 767 (1973); and Vlandis, 412 U.S. 441, 463, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973), but has been voiced together with other criticisms in the literature of the profession. See, e. g., Note, The Irre-buttable Presumption Doctrine in the Supreme Court, 87 Harv.L.Rev. 1534 (1974); Note, Irre-buttable Presumptions: An Illusory Analysis, 27 Stan.L.Rev. 449 (1975).

      . 422 U.S. at 772, 95 S.Ct. 2457. See also Comment, The Burger Court’s “Newest” Equal Protection: Irrebuttable Presumption Doctrine Rejected-Two-Tier Review Reinstated, 1977 Wash.U.L.Q. 140, 147 run. 37 and 39. But see Ackerman, supra note 24, at 773 n. 66 and accompanying text.

      . 422 U.S. at 777, 95 S.Ct. at 2472-73. While it might be argued that the subsequent appearance of the conclusive presumption doctrine in Turner v. Department of Employment Security, 423 U.S. 44, 96 S.Ct. 249, 46 L.Ed.2d 181 (1975), to invalidate a law making pregnant women ineligible for unemployment compensation benefits during a specified period before and after childbirth, signalled a return to strict analysis, it seems more likely that the Court merely applied LaFleur as controlling precedent to protect a constitutionally favored interest (right to bear children). The application of the “reasonableness” standard in the more recent decision of Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976), in which the Court by per curiam opinion upheld a state law requiring that uniformed state police officers retire at age 50, indicates that Weinberger survives and will continue to govern most conclusive presumption claims.

      . Ch. 76-138, Laws of Fla.

      . Indeed, in view of the ease with which a previously convicted felon may obtain a restoration of his civil rights in Florida, see note 3 above, the failure to do so may in itself signify the existence of extraordinary characteristics justifying cautious treatment.

      . See note 29 above.

      . 422 U.S. at 777, 95 S.Ct. at 2473.


author: ALDERMAN, Justice.

text:
    Teddy Warren KELLY, Appellant, v. STATE of Florida, Appellee.
    No. 53087.
    Supreme Court of Florida.
    Sept. 14, 1978.
    Janice G. Scott, Asst. Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   ALDERMAN, Justice.

This cause is before us on direct appeal by the defendant, Teddy Warren Kelly, to review the order of the trial judge denying his request for bond pending appeal and upholding the constitutionality of Section 903.132, Florida Statutes (1976 Supp.), which prohibits the granting of bail on appeal to a person convicted of a felony when other felony charges are pending against him and where probable cause has been found, at the time request for bail is made, that he has committed the felony or felonies. We have jurisdiction pursuant to Article V, Section 3(b)(1), Florida Constitution.

The sole question for resolution is the constitutionality vel non of Section 903.-132 and Fla.R.Crim.P. 3.691(a). We agree with the trial court that this statute and rule are constitutional.

Kelly filed a motion for setting bail pending appeal with the Circuit Court, in and for Escambia County, and alleged, among other things, that the provisions of Fla.R. Crim.P. 3.691(a) and Section 903.132 are violative of the Fifth and Fourteenth Amendments, United States Constitution, and Article I, Sections 5 and 9, Florida Constitution.

Finding that probable cause has been found on other felony charges pending against Kelly and holding that Section 903.-132 and Fla.R.Crim.P. 3.691(a), which clearly prohibit the court from granting bail in this case, are constitutional, the trial court denied Kelly’s motion for bond pending appeal.

Section 903.132, Florida Statutes (1976 Supp.), provides:

(1) No person may be admitted to bail upon appeal from a conviction of a felony unless the defendant establishes that the appeal is taken in good faith, on grounds fairly debatable, and not frivolous. However, in no case shall bail be granted if such person has previously been convicted of a felony, the commission of which occurred prior to the commission of the subsequent felony, and such person’s civil rights have not been restored or if other felony charges are pending against him and probable cause has been found that the person has committed the felony or felonies at the time the request for bail is made.
(2) An order by a trial court denying bail to a person pursuant to the provisions of subsection (1) may be appealed as a matter of right to an appellate court, and such appeal shall be advanced on the calendar of the appellate court for expeditious review.

Fla.R.Crim.P. 3.691(a) provides:

(a) All persons who have been adjudicated guilty of the commission of any offense, not capital, may be released, pending review of the conviction, at the discretion of either the trial or appellate court, applying the principles enunciated in Younghans vs. State, 90 So.2d 308 (Fla.1956), provided, that no person may be admitted to bail upon appeal from a conviction of a felony unless the defendant establishes that the appeal is taken in good faith, on grounds fairly debatable, and not frivolous; provided that in no case shall bail be granted if such person has previously been convicted of a felony, the commission of which occurred prior to the commission of the subsequent felony, and such person’s civil rights have not been restored, or if other felony charges are pending against him and probable cause has been found that the person has committed the felony or felonies at the time the request for bail is made.

Kelly argues that the statute and the rule establish an arbitrary and illogical criterion for the absolute prohibition of bail pending appeal to persons against whom felony charges are pending for which probable cause has been found and disallow application of the criteria established in Younghans v. State, supra, and that the statute and rule make the determination of the matter of bail on appeal for a limited group of persons not on the basis of what justice requires but on the basis of an arbitrary standard unrelated to the purpose of bail. Kelly claims that the fact that probable cause has been found for a pending felony charge in no way conclusively establishes that the ends of justice require that a defendant be imprisoned. Cf. Younghans v. State, supra. He contends that prohibition of bail on appeal because of a pending felony charge indirectly denies him his constitutional right to bail in the pending prosecution; that the trial court should be able to grant or deny bail to all defendants in its sound discretion based on factors which are relevant and which are described in Youn-ghans ; and that, rather than being conclusive on the matter, the pending felony charge, at most, should be a factor for full consideration by the trial judge in determining whether bail should be granted.

The state points out that Kelly has been charged with, and probable cause has been found for, seven separate crimes, three of which are the crime of burglary and one of which is arson. It contends that the rule and statute are not arbitrary and, therefore, not unconstitutional. We agree. Relative to Kelly’s argument that Younghans provides a more rational approach adequate to protect the public welfare, the state correctly submits that Kelly is quarreling with the wisdom of the statute and the rule and not their constitutional validity.

Release on bail pending appeal is not an absolute right guaranteed by the Constitution, and the granting of bail pending appeal must be exercised within the guidelines established by case law and adopted by court rule, Baker v. State, 213 So.2d 285 (Fla. 4th DCA 1968). In Greene v. State, 238 So.2d 296 (Fla.1970), we upheld the constitutional validity of Section 903.132, Florida Statutes (1969), which denied bail on appeal from conviction of a felony to persons previously convicted of a felony and found that this statute was neither arbitrary nor discriminatory since it was based upon, among other grounds, the known propensity of a habitual offender to continue a pattern of criminal activity of a serious nature, thereby making him an extremely poor bail risk. In that case, we noted:

Our federal courts generally agree that although the concept of release on reasonable bail after conviction is basic and fundamental to our legal system, it is not an absolute right constitutionally guaranteed by the Eighth Amendment to the United States Constitution. Even those federal courts that have expressly held or assumed, arguendo, that the bail provision of the Eighth Amendment to the United States Constitution applies directly to state action, have recognized that a state may constitutionally by statute or exercise of judicial discretion grant release on bail in some eases and deny it in others, as long as the state acts reasonably and not arbitrarily or discriminatorily. 238 So.2d at 299.

The rationale enunciated in Greene for upholding the validity of Section 903.132, Florida Statutes (1969), is likewise applicable to the provision in Section 903.132, Florida Statutes (1976 Supp.), with which we are now dealing.

Accordingly, we find that Section 903.132, Florida Statutes (1976 Supp.), and Fla.R. Crim.P. 3.691(a) are constitutional and affirm the order of the trial judge denying bail pending appeal.

It is so ordered.

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

ENGLAND, C. J., and SUNDBERG, J., dissent.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Morton ROSENBLUM, Respondent.
    No. 53088.
    Supreme Court of Florida.
    Sept. 14, 1978.

      S. Kirby Moncrief, Bar Counsel, Sanford, and James P. Hollaway, Asst. Staff Counsel, Tallahassee, for complainant.
    Tanya M. Plaut, Orlando, for respondent.
   PER CURIAM.

This matter is before the Court to review the report of the Referee in a disciplinary proceeding wherein the recommended discipline is disbarment. Respondent has filed a petition for review of the report in which he requests this Court to modify the recommendation and “grant such other and further relief as shall seem right and proper to the Court.” This is a matter of original jurisdiction in this Court in accordance with Article V, Section 15, Florida Constitution.

The proceeding was initiated by a complaint filed by The Florida Bar alleging that respondent was retained by a client to file a breach of contract suit. Approximately one year after the suit was filed, it was dismissed for lack of prosecution. After the suit was dismissed, respondent fabricated reports of the “progress” of the suit to his client. He represented that a summary judgment had been obtained and upheld on appeal, and that the case could be settled for $152,000. In connection with misrepresentations concerning the progress of the suit, respondent even fabricated a document purporting to be a final judgment in the cause. It is further alleged in the complaint that the client was obliged to review the court file to determine that no action had been taken in the litigation and that it had been dismissed for lack of prosecution. Respondent asserts that he ultimately confessed his conduct to the client. Thereafter, the client retained the services of another attorney to represent him in regard to the breach of contract suit. In addition, it appears that respondent has entered into some form of restitution with the client.

Answers to request for admissions propounded by The Bar as well as answer and affirmative defenses were filed by the respondent in which the foregoing facts were essentially admitted. Furthermore, while the proceedings were pending, respondent filed in this Court a petition for leave to resign which was resisted in some particulars by The Bar. This Court denied respondent’s petition.

Ultimately the matter came on for hearing before the Referee upon a stipulation of facts and consent judgment wherein the allegations of the complaint filed by The Florida Bar were admitted and a plea of guilty to the charges of ethical violations was entered subject to the condition that the Referee hear testimony as to extenuating circumstances. At the hearing the Referee received the testimony of respondent as well as the testimony of Dr. Paul Satz, by deposition. That testimony reflects that respondent has for a period of many years periodically suffered from significant emotional problems. Evidence was also received concerning prior disciplinary measures taken against respondent which disclosed that he was disbarred in 1967 upon being found guilty on three counts of improperly using or embezzling clients’ funds and of other deceitful practices involving the property and business of his clients. See The Florida Bar v. Rosenblum, 197 So.2d 509 (Fla.1967).

Based upon the foregoing stipulation, testimony and evidence, the Referee concluded in his report:

[TJhat Mr. Rosenblum’s continuing psychological problems, although intermittent, disqualify him from a position of trust. Although every lawyer must from time to time, experience stress and emotional conflict which would, to some degree, impair their effectiveness in their profession, Mr. Rosenblum is apparently unable to cope with these stressful situations and his ability to practice law is impaired or destroyed to a significant degree.

Accordingly, it was the recommendation of the Referee that respondent be disbarred from the practice of law in Florida. The Referee expressly rejected suspension as an appropriate form of discipline.

In his instant petition, respondent maintains that disbarment is inappropriate discipline for his unethical conduct. While he does not deprecate at all the gravity of his misconduct, respondent asserts that both he and the public will be better served by fashioning a form of discipline which recognizes that his ethical deficiencies stemmed from medically documented severe emotional problems. Although respondent represents that he has no present intention of practicing law in the future (he has voluntarily discontinued practice for some time), he is unwilling to tender an offer of resignation conditioned upon never seeking readmission.

While we completely sympathize with the Referee’s recommendation under the circumstances of respondent’s demonstrated record of unfitness, nonetheless, an alternative to disbarment seems to be called for in this case. This is so because disbarment has once been visited upon respondent with little or no salutary effect. Although disbarred in 1967, respondent was readmitted in 1972 after receiving professional psychological aid and, ostensibly, being rehabilitated. Under the Integration Rule respondent would again be eligible to make application for readmission at the expiration of three years. This could become a never ending (and totally unsatisfactory) rondo. Counsel for The Florida Bar conceded at oral argument that The Bar is cognizant of the irony of such a situation.

Accordingly, while mindful of the reprehensible nature of respondent’s ethical misconduct, we determine to reject the Referee’s recommendation of disbarment and, in lieu thereof, impose the following discipline which we perceive to be in the public interest. Respondent, Morton Rosenblum, is hereby suspended from the practice of law in Florida for a period of three years from the date this judgment shall become final and thereafter until he shall comply fully with all of the following conditions for reinstatement:

(1) He shall make full restitution to any and all injured clients who are either involved in this proceeding or who may be discovered before respondent submits any application for reinstatement.

(2) He shall prove by clear and convincing evidence his complete mental, emotional and moral rehabilitation, together with all the other requirements of The Florida Bar Integration Rule, Article XI, Rule 11.11 and the bylaws thereunder, during any reinstatement proceedings.

(3) He shall pass all portions of The Florida Bar Examination after any future application for reinstatement is submitted to The Bar, but prior to and as a condition of reinstatement.

(4) Within thirty days from this judgment becoming final he shall pay all costs incurred by The Florida Bar in these proceedings and in any other grievance proceeding now pending against him before any Bar grievance committee or any referee.

It is so ordered.

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

      . Fla. Bar Integr. Rule, Art. XI, Rule 11.10(4).


text:
    CITY OF MIAMI BEACH, etc., et al., Appellants, v. Francis X. MARZULLO et al., Appellees.
    Nos. 77-877, 77-1678 and 77-1679.
    District Court of Appeal of Florida, Third District.
    July 11, 1978.
    Rehearing Denied Oct. 18, 1978.
    Joseph A. Wanick, City Atty., Reichen-thal & Weinstein, Miami, and Lee H. Schil-linger, Coral Gables, for appellants.
    Eugene P. Spellman and Denis Dean, Miami, for appellees.
    Before HENDRY, J„ and GOMEZ, HE-LIO, and CHARLES CARROLL (Ret.), Associate Judges.
   PER CURIAM.

On November 12, 1975, a number of members of the police force of the City of Miami Beach filed a complaint against the City, its police department, the personnel director, the personnel representative of the City and members of the Oral Review Board. The complaint challenged the validity of an examination given by the City police department, on the basis of which to establish a list for promotion to police sergeant. By the City’s personnel rule (VI § 3), after such an examination, the personnel director would prepare a promotional list of those who passed such examination, listing them in the order established by their respective ratings on the examination. Such promotional list would expire one year after the posting of the records of the promotional examination, and, when such a list was combined with an existing list, it would expire one year after being so combined.

The trial court enjoined promotions under such list pending the litigation [except for certain promotions which the court found should be made, and with which this case presently is not concerned].

On March 30, 1977, the court entered a final judgment upholding the written portion of the challenged examination but holding the oral portion of the examination to be invalid. Thereby the results of the examination were made effective for promotional list purposes. The City appealed. Officers Terry Bahn and William Lamb, who had passed both the written and the oral portions of the examination, having been allowed to intervene as defendants filed a cross-appeal.

While its appeal was pending, the City worked out a settlement. However, upon recognizing that the judgment of the trial court had not specified a date for the termination of the promotional list which, except for the litigation, would long since have expired, the City requested and obtained from this court an order relinquishing jurisdiction to the trial court to determine and report to this court the date upon which such promotional list would expire. By an order entered July 18, 1977, the trial court found November 1, 1977, as the date for expiration of the list. In that order the court made reference to the fact that no promotions had been made from that list since 1975, during pendency of the action, and that because of budgetary problems of the City could not be made before October of 1977, but that promotions could be made from the list during October, whereupon the trial court fixed the expiration date of November 1, 1977. In view of the settlement made with the City, its appeal was dismissed but jurisdiction of the cross-appeal was retained.

The cross-appellants argue that termination of the list on November 1,1977, was in violation of the personnel rule referred to above, and contend that the rule would require the list to remain in existence for one year from the posting thereof in March of 1977 by virtue of the final judgment. They argue further that they are disadvantaged by the early expiration date fixed by the court for the reason that if they were not promoted therefrom in October of 1977, a new list to which they would be carried over could include other new examinees who might outrank them on such a new list.

The City argues that the trial court had discretion in the matter, and that in fixing the termination date of the list was not shown to have abused its discretion. We agree with the argument thus advanced by the City. The decision of the trial court that the list should terminate on November 1, 1977, would appear to be supported by sound reasons. Since promotions from the list had been long deferred pending the litigation, promotions necessary to be made from the list could be made therefrom without lengthy extension of its existence. In that interval of time it is reasonable to assume that other fitting applicants for promotion could and should become entitled to compete for advancement, and gain position on a new list after expiration of the existing list.

Upon review of the matter, we hold no sufficient reasons have been shown to require disturbance of the trial court's order.

Affirmed.