author: SHORES, Justice.

text:
    Katrina Mixon WILDER, et al. v. Flora Pauline MIXON.
    82-629.
    Supreme Court of Alabama.
    Dec. 2, 1983.

      Huey D. Mclnish and William C. Carn, III of Lee & Mclnish, Dothan, for appellants.
    W.G. Hardwick and Jere C. Segrest of Hardwick, Hause & Segrest, Dothan, for appellee.
   SHORES, Justice.

This appeal is from a decree of the Circuit Court of Houston County ordering the executors of the estate of Travis Mixon, III, to pay to his widow, Flora Pauline Mixon (hereinafter referred to as Pauline Mixon or the widow), the reasonable rental value of property assigned to her as dower and homestead. The appeal follows many years of litigation involving this estate and the estate of Travis Mixon, Jr. The facts are as follows:

Travis Mixon, Jr., died intestate in 1967, leaving his wife, Louise Cobb Mixon Byars, and two adult children, Travis Mixon, III, and Katrina Mixon Wilder. On March 22, 1970, before dower was assigned to Mixon, Jr.’s widow, Louise Byars, his son, Travis Mixon, III, died. Travis Mixon, III, was survived by his wife, his sister, a niece, three nephews, and his mother. By his will, he left all of his property, including the interest he had acquired in his father’s estate by intestate succession, to his sister, for life, the remainder in fee simple to her children, his three nephews and niece. His widow timely dissented from the will.

Pauline Mixon filed her original complaint in 1971, against the persons named in her husband’s will, the executors of his estate, and his mother, individually and as administratrix of the estate of his father. Thomas Wilder, husband of Katrina Wilder, was later added as a defendant. As amended, the complaint sought:

(1) assignment of a homestead;

(2) assignment of dower by metes and bounds;

(3) the net rents and profits actually received by defendants on the dower property from the date of her husband’s death to the date dower was set aside;

(4) the net rents and profits actually received by defendants on the homestead property from the date of her husband’s death to the date the homestead property was set aside;

(5) reasonable rental value for actual personal use of the dower property by defendants for their own personal use;

(6) $2,000.00 exemption, pursuant to § 6-10-64, Ala.Code 1975 (plaintiff held not entitled to this).

Coincident to this litigation, the estate of Travis Mixon, Jr., was the subject of litigation in federal and state courts. None of that litigation is related to this case, except to the extent that it accounts for much of the delay involved in assigning the dower of Pauline Mixon.

A trial was held in this case on the widow’s complaint to collect the net rents and profits and reasonable rental value of the dower property. The trial court’s judgment was for the widow. Among the court’s findings were:

“(11) That net rents and profits actually collected and received by the Defendant, Louise C. Mixon, individually and as Administratrix of the Estate of Travis Mixon, Jr., deceased, over the period of time from Plaintiff’s husband’s death until the assignment of Plaintiff’s dower, plus interest, is in the sum of $16,602.35, for which rents and profits it appears have been previously accounted for and disbursed to the Executors of the Last Will and Testament of Travis Mixon, III, deceased.
“(12) That additional net rents and profits actually collected and received by the Defendants, Katrina Mixon Wilder, James Travis Mixon, and T.W. Wilder, IV, individually, and as Co-Executors of the Estate of Travis Mixon, III, over the period of time from Plaintiff’s husband’s death until the setting aside of the homestead property to her and until the assignment of her dower, plus interest, is in the sum of $38,585.21.
“(13) That the reasonable rental value for the actual personal use of the dower property by the Defendant, T.W. Wilder, for his own benefit over the period of time from Plaintiffs husband’s death until the assignment of Plaintiff’s dower, less costs expended in improving the dower property, plus interest, is in the sum of $32,470.38.
“(14) That Plaintiff is entitled to net rents and profits actually received by the Defendants over the period of time from Plaintiff’s husband’s death until the assignment of Plaintiff’s dower. Hale v. Cox, 240 Ala. 622, 200 So. 772.
“(15) That Plaintiff is entitled to the reasonable rental value for any actual personal use of the dower property by the Defendants for their own benefit over the period of time from Plaintiff’s husband’s death until the assignment of her dower, less costs expended in improving the dower property. Webb v. Webb, 250 Ala. 194, 33 So.2d 909.
“(16) That Plaintiff is entitled to net rents and profits actually received by the Defendants over the period of time from Plaintiff’s husband’s death until the setting aside of the homestead property to her. Hale v. Cox, supra.

The first issue before us is whether the widow is entitled to the reasonable rental value of her dower property which was farmed by Thomas Wilder for about four years immediately prior to the assignment of her dower. The widow argues that as soon as her dower is assigned, her rights in the dower property vest and relate back to the date of her husband’s death. She relied on Hale v. Cox, 240 Ala. 622, 200 So. 772 (1941), as support for her claim for reasonable value for use of the property by Thomas Wilder. In that case, the Court said:

“Before dower is assigned, she [the widow] has no standing at law to a share of the rents on lands in which she has such right. Bettis v. McNider, 137 Ala. 588, 34 So. 813, 97 Am.St.Rep. 59. But such right is available in equity, after the dower has been assigned, extending back to the date of the death of her husband. [Citations omitted.]
“... The only theory on which equity will award her such rents for a period prior to the time when the dower is assigned is that she thereby has become the owner of that so assigned, as of the date of her husband’s death. Being the owner, the right to rents is an incident.”

Hale v. Cox, 240 Ala. at 626, 627, 200 So. at 775, 776.

The appellants concede that Hale v. Cox, supra, is a sound basis for awarding net rents and profits actually received by them, but argue that there is no legal basis for awarding the widow an amount based upon the reasonable rental value of the property, where there were no rents or profits. We agree.

The widow’s right to dower is only an equity or chose in action until dower is assigned to her by the court. Aniton v. Robinson, 273 Ala. 76, 134 So.2d 764 (1961). The widow does not receive a property interest in her husband’s lands automatically upon his death. She becomes vested of a life estate only upon confirmation of the assignment of dower by the court. Taylor v. United States, 388 F.2d 849 (5th Cir.1967); Gillian v. Gillian, 340 So.2d 785 (Ala.1976); Aniton v. Robinson, supra; Ala.Code § 43-5-48 [repealed 1982, but effective as to wills of persons dying before January 1, 1983, Ala.Code § 43-8-8 (1982) ]. Until the date of the assignment of dower, she has no right “to enter and occupy any part of her deceased husband’s estate or to retain possession thereof as against the heirs or those claiming under them.” G. Thompson, Commentaries on the Modern Law of Real Property § 1919 (1979 Repl.). See Lester v. Stroud, 212 Ala. 635, 103 So. 692 (1925); Hays v. Lemoine, 156 Ala. 465, 47 So. 97 (1908). However, in Alabama, the widow does have a statutory right of quarantine. This is strictly limited to “the dwelling house where her husband most usually resided next before his death, with the offices and buildings appurtenant thereto and the plantation connected therewith.” Ala.Code 1975, § 43-5-40 [repealed 1982, current statute Ala.Code § 43-8-110 (1983 Repl.)].

The immediate right to use and occupy the testator’s lands, except the last regular residence of the testator, belongs to the devisee. The property interest of the devisee vests immediately upon the death of the testator, subject only to be intercepted for purposes of administration and dower, if any. Murphy v. Vaughan, 226 Ala. 461, 147 So. 404 (1933); Lester v. Stroud, supra; 96 C.J.S. Wills § 1099 (1957).

In this case, the evidence shows that Thomas Wilder, husband of the life beneficiary and father of the remainder persons under the will, farmed portions of the dower property from 1975 until the dower was assigned in 1978. (From 1970 to 1975, the property was rented to outsiders.) The land was farmed under the name of Tom-Kat Farms. Under this name, Thomas Wilder managed and farmed all of his wife’s property and their jointly held property. Substantial improvements to and expenses for maintenance of the dower property were charged to Tom-Kat Farms. The annual profit or loss on the dower property was combined with the net profits and losses for all of Tom-Kat Farms and reported on the personal income tax return of Thomas and Katrina Wilder.

Clearly, Thomas Wilder was not farming the dower property for the benefit of the estate. The facts that the land was farmed under Tom-Kat Farms, and no expenses, profits, or losses were ever charged to the estate, bears this out. Furthermore, there was no evidence that Thomas Wilder was farming the land for his personal benefit, but the evidence indicates he was acting for Katrina Wilder and was maintaining the land for her benefit and for the benefit of his children, who were the remainder persons. He managed all of his wife’s property and, because she had a life estate in this property, he cared for this land just as he did all her other lands already included in Tom-Kat Farms at that time. There was no evidence of mismanagement. The farming operation simply failed to make a profit in the years involved.

The estate of Travis Mixon, III, was intermingled with the estate of Travis Mix-on, Jr. Dower for Pauline Mixon could not be assigned until dower for Louise Byars had been confirmed. Louise’s dower was set aside in 1975, and Pauline’s was set aside in 1978. It was impossible to determine ahead of time what property would be assigned as dower for either widow. In the meantime, Katrina Wilder, as life tenant, personally or acting through an agent, had the right to use, occupy, and farm all of the land of which she was vested immediately upon the death of Travis Mixon, III. Murphy v. Vaughan, supra; Lester v. Stroud, supra. Of course, all the lands of Travis Mixon, III, were subject to dower, but the life tenant was not required to restrict her use of the land because of the possibility that some of it might later be set aside for dower. However, when land she was using was included in the dower, she was required to relinquish her possession and control to the widow as of the date of the assignment. This she did.

We know of no law that a devisee with full legal right to possess land in her own right must pay for the reasonable rental value of such land for the use thereof to one who had no simultaneous right to use and possession. We hold that the trial court erred in ordering the appellants to pay the widow the reasonable rental value of the land for the use of it by Katrina Wilder. Specifically, we reverse as to the trial court’s findings numbered 13 and 15, reprinted above. Webb v. Webb, 250 Ala. 194, 33 So.2d 909 (1948), does not support the trial court’s conclusion.

Webb v. Webb involved a case brought by the executor/beneficiary and two other beneficiaries under the will against the estate of the preceding executor, who was also a beneficiary, to contest the report for final settlement filed by the administratrix of the estate of the preceding executor. The plaintiffs sought, among other things, the rental value of property of the first estate used by the deceased executor for his personal benefit. The trial court held, and this Court affirmed its holding, that the deceased executor’s estate was liable. This case is distinguishable because it was a suit brought by the beneficiaries against, essentially, the executor to recover the rental value of estate property which he devoted to his personal use during his administration. There is a fiduciary relationship between an executor and the beneficiaries, Amos v. Toolen, 232 Ala. 587, 168 So. 687 (1936), which does not exist between a doweress and devisee, and which requires the executor to act in accord with the trust, confidence, and faith reposed in him.

The only other issue before us on this appeal concerns the trial court’s finding that the executors of Travis Mixon’s estate actually received $38,585.21 in net rents and profits from the widow’s dower and homestead properties prior to the dates such properties were set aside to her. (See findings numbered 12, 14, and 16.) The appellants concede that the widow is entitled to such rents and profits on the authority of Hale v. Cox, supra. Their only dispute is that the evidence does not support the finding that the amount actually collected and received is $38,585.21.

The trial court made no specific reference to any evidence in support of its written finding that the amount of rents collected equalled $38,585.21. We have examined the entire record and are unable to determine what figures and computations were used by the trial court to arrive at this figure. There is conflicting evidence as to how much money was collected as rent on the properties in question, and how much was expended by the executors in improving and maintaining the properties. In Gulf Coast Fabricators, Inc. v. Mosley, 439 So.2d 36 (Ala.1983), the trial court also awarded damages without setting out specific findings of fact following an ore tenus hearing. In affirming that court, we stated:

“On appeal from a judgment entered without any specific findings of fact, we assume that the trial court’s judgment is based upon facts appearing in the record. The evidence below clearly supports the judgment of the court. We are, therefore, compelled to affirm. Thomas v. Davis, 410 So.2d 889 (Ala.1982); O’Connor v. Rabren, 373 So.2d 302 (Ala.1979).
“This case was tried without a jury. Conflicting evidence was taken orally, through numerous exhibits and also by the admission of relevant parts of the deposition of Buddy Lowe. It is well settled that:
“ ‘When a trial court makes findings of fact based on evidence presented ore tenus, those findings of fact will not be disturbed on appeal unless clearly erroneous or manifestly unjust, and this rule is especially applicable in cases in which the trial court makes its findings of fact after hearing conflicting evidence; every presumption will be indulged in favor of the court’s findings, and those findings will not be disturbed unless palpably wrong. Leslie v. Pine Crest Homes, Inc., 388 So.2d 178 (Ala.1980).’ ”

439 So.2d at 39.

Accordingly, we affirm the trial court’s ' finding that the net amount of rents collected was $38,585.21, as we cannot say that the finding is clearly erroneous or manifestly unjust.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

TORBERT, C.J., and MADDOX, JONES and BEATTY, JJ., concur.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    J.L. FLOYD v. INDUSTRIAL DEVELOPMENT BOARD OF the CITY OF DOTHAN, et al.
    82-747.
    Supreme Court of Alabama.
    Dec. 2, 1983.
    John E. Byrd of Byrd & Carter, Dothan, for appellant.
    William G. Hause of Hardwick, Hause & Segrest, Wade H. Baxley of Ramsey & Baxley, Dothan, Robert H. Harris and J. Lister Hubbard of Capell, Howard, Knabe & Cobbs, Montgomery, for appellees.
   MADDOX, Justice.

The Industrial Development Board of the City of Dothan (Development Board), James D. Russell, Jr., and MRW, Inc., are plaintiffs-appellees in this case, and J.L. Floyd is the defendant-appellant.

The facts indicate that sometime in 1971 or 1972, the New Beverlye Road was constructed. It commenced at Alabama Highway 52, in Dothan, and ran from there in a southerly direction. (See Appendix A.) At the time New Beverlye Road was built, Beverlye Road, an unpaved road, intersected Highway 52 some distance to the east, and ran from there in a southwesterly direction. (See Appendix A.) All parties agree that prior to 1971 or 1972, Beverlye Road was a public road.

In May of 1972, the Highway Department of the State of Alabama purchased land abutting the east side of Beverlye Road. (See Appendix A.) Although the deed defined the property’s western boundary as “Old Kinsey Road,” this name was synonymous with Beverlye Road. By deeds dated January 1974, appellant Floyd was conveyed property abutting Beverlye Road. The deeds define the boundaries of appellant’s property in a metes and bounds description by reference to the sides of Beverlye Road. The deeds, however, explicitly exclude the right-of-way for Bever-lye Road.

The highway department was issued, in February 1974, a building permit by the City of Dothan for the construction of the state highway department building on property fronted by Beverlye Road. In March of the same year, appellant Floyd granted the highway department permission by a letter to “alter the intersection at Old Beverlye Road and Alabama No. 52 east in Dothan.” When the highway department altered this intersection, a portion of Beverlye Road was paved as a part of the access road to the state highway department complex. (See cross-hatching as indicated in Appendix A.)

The highway department is a complex and access to the complex is gained by traveling along the paved road which includes stretches of Beverlye Road that were formerly unpaved. On October 24, 1977, the Houston County Commission formally recognized that only the portion of Beverlye Road below the highway department property, i.e., that portion below the fence indicated in Appendix A, which remains unpaved, was abandoned, thereby leaving the paved portion of Beverlye Road as a cul-de-sac leading from Highway 52 to appellees’ property.

There is testimony to the effect that ap-pellee Russell and the public have used the paved portion of Beverlye Road since at least 1977, to gain access to property purchased by Russell. Tenants who farm the abutting property have likewise used the paved portions of Beverlye Road.

In 1982, appellee MRW started construction of a warehouse on property in the Sam Houston Industrial Park which it had purchased from appellee Russell. Because of the increased traffic on Beverlye Road, appellant posted signs and barricaded the road in the summer of 1982. Consequently, plaintiffs sought to enjoin Floyd from obstructing access to and from the industrial park by way of Beverlye Road. The trial court, following a hearing, granted the preliminary injunction, whereupon Floyd filed his answer and counterclaim. In a motion for summary judgment, the plaintiffs stated that there was:

“... [N]o genuine issue as to any material fact that the Old Beverlye Road, which intersects defendant’s property, is a public right-of-way and has never been abandoned; and, therefore, plaintiffs are entitled to judgment as a matter of law on Count 1 and Count 2 of the counterclaim as appears from the testimony and documents presented at the hearing on motion for preliminary injunction held August 30, 1982.”

The trial court granted summary judgment and dismissed counts 1 and 2 of Floyd’s counterclaim. Floyd then filed a motion to dissolve the injunction, and also a motion that was styled as a motion to reconsider, vacate or set aside the summary judgment. The court denied both motions on May 2, 1983. Floyd filed a timely notice of appeal on May 13, 1983. See Code 1975, § 12-22-6; Rule 4(a)(1), Ala.R.App.P.

I

We first address Floyd’s contention that the trial court erred in refusing to dissolve the preliminary injunction.

Floyd asserts that the road to which the injunction applies is what was once known as “old” Beverlye Road, but that the road was built on new and different land belonging to him and the highway department and is only an access road to the state highway department complex. He states that what was once known as Beverlye Road is now his backyard, with a lawn covering it, and that the balance of Bever-lye Road is not, and has not been, used by the public as a road since 1971 or 1972. Floyd contends, therefore, that Beverlye Road was abandoned and the title of the roadbed reverted to the landowners abutting the road when New Beverlye Road (See Appendix A) was opened for public use.

A public road may be abandoned and thus lose its public character in one of several ways. One example is nonuser for a period of twenty years which will operate as a discontinuance of a public road. See Harbison v. Campbell, 178 Ala. 243, 252, 59 So. 207, 210 (1912). Likewise, an abandonment of a public road may be effected by a formal, statutory action. See Code 1975, §§ 23-4-1 through 23-4-6. There is also authority for the proposition that the construction of a new highway replacing an old road may, under the right circumstances and after an appropriate length of time, result in an abandonment of the old road. See 39A C.J.S. Highways, § 134 (1976). In the case of Purvis v. Busey, 260 Ala. 373, 71 So.2d 18 (1954), this Court alluded to this last proposition:

“In Harbison v. Campbell, 178 Ala. 243, 59 So. 207, it was said that nonuser short of the time of prescription does not operate as a discontinuance of a public road. We have not rested our conclusion here on that statement for here, unlike the Harbison case, supra, there has been a substitution of one road for another and there is respectable authority for the proposition that when such is the case there can be abandonment by non-use for a period short of the time of prescription. But we leave a decision of that question to await a case where such a decision is necessary.” (Emphasis added.)

We hold that the trial court did not err in denying Floyd’s motion to dissolve the preliminary injunction. The-applicable rule in this instance is found in § 6-6-501, to-wit: “A motion to dissolve will lie to the granting of a preliminary injunction only for matters subsequently occurring.” (Emphasis added.) Thus, when a preliminary injunction has been issued after a full hearing on the matter, as in this case, a motion to dissolve is inappropriate unless circumstances have changed since the granting of the preliminary injunction so as to warrant a reconsideration of the merits. See Berman v. Wreck-A-Pair Bldg. Co., 234 Ala. 293, 296, 175 So. 269, 272 (1937).

In response to the Board’s complaint seeking a preliminary injunction, Floyd filed a motion to dismiss raising numerous grounds opposing the granting of a preliminary injunction. On August 30, 1982, after a full hearing on the request for a preliminary injunction, which included the taking of testimony, the trial court issued a preliminary injunction barring Floyd from obstructing Beverlye Road. On April 29, 1983, Floyd filed his motion to dissolve the injunction which essentially restated the grounds raised in his motion to dismiss filed prior to the hearing on the preliminary injunction. In fact, paragraphs 4, 5 and 6 of Floyd’s motion to dissolve the injunction are verbatim with paragraphs 2, 3, and 4 of his motion to dismiss. The remaining paragraphs of the motion to dissolve the injunction merely restate Floyd’s legal theories and raise no matters which occurred subsequent to the granting of the preliminary injunction. We find no error in the refusal of the trial court to dissolve the preliminary injunction.

II

We now discuss Floyd’s argument that the trial court erroneously granted the plaintiffs’ motion for summary judgment. Floyd contends that this Court should adopt the rule of law that nonuser of a public way for a period of less than twenty years can constitute an abandonment, and that he is entitled to a trial on the question of abandonment in this case.

The plaintiffs contend the Houston County Commission formally recognized that portion of Beverlye Road which remained unpaved to be abandoned, but claims that this fact does not constitute an abandonment of the portion of Beverlye Road still in use, i.e., the paved portion, even though the paved portion is now a cul-de-sac. See 39A C.J.S. Highways, § 131 at 850 (1976); Purvis v. Busey, supra. The right-of-way agent for the City of Dothan indicated that a map prepared by the United States Department of the Interior in 1969, and updated in 1981, shows the existence of both New Beverlye Road and “old” Beverlye Road. Also, the plaintiffs contend that the evidence is undisputed that the City of Do-than continues to maintain a waterline in the right-of-way of “old” Beverlye Road. In short, the plaintiffs contend that there was no abandonment as a matter of law.

On the other hand, Floyd contends that much of the “old” Beverlye Road is now covered with grass, is cultivated or is otherwise not being used as a public road. Floyd also contends that he granted permission only to the state highway department for a right-of-way to the highway department complex and that new Beverlye Road was constructed to replace “old” Bev-erlye Road. We are of the opinion that there is a material fact whether there was an abandonment of the “old” Beverlye Road in this case.

Because we adopt the rule of law that “there can be abandonment by nonuse for a period short of the time of prescription,” we hold that a genuine issue of material fact exists in this case, and that granting of summary judgment was inappropriate, but at trial, Floyd will have the burden of showing abandonment by clear and convincing evidence. Purvis v. Busey, supra.

Ill

We conclude that the judgment granting a preliminary injunction is due to be affirmed, but that the granting of summary judgment is due to be reversed and the case remanded.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur.

      . Appendix A is not drawn to scale and is merely intended to aid the reader’s understanding of the facts of this case.


author: HOLMES, Judge.

text:
    C & S CONSTRUCTION COMPANY, INC. v. Tom MARTIN and Carol Martin.
    Civ. 3783.
    Court of Civil Appeals of Alabama.
    Aug. 24, 1983.
    Rehearing Denied Sept. 21, 1983.
    Melvin W. Brunson of Thiry, Maples & Brunson, Mobile, for appellant.
    Joseph J. Boswell, Mobile, for appellees.
   HOLMES, Judge.

This appeal concerns three lawsuits filed by the same plaintiff against the same defendants. In the instant appeal plaintiff, through able counsel, contends the trial court erred in denying his A.R.Civ.P. rule 60(b)(6) motion for relief from the final judgment entered in the second lawsuit. Finding no abuse of discretion in the lower court’s action, we affirm.

Plaintiff C & S Construction Company filed its first suit against the defendants in the District Court of Mobile County in July of 1981. The complaint was for work and labor performed and breach of contract. In September of 1981, in an attempt to perfect a contractor’s lien against the building repaired, plaintiff filed the second suit, this time in the Circuit Court of Mobile County.

Defendants filed a motion to dismiss suit No. 2, relying on Alabama Code provision 6-5-440. While that motion was pending and apparently without notice of the motion, plaintiff voluntarily dismissed suit No. 1, the district court action. Thereafter, the defendant’s motion to dismiss suit No. 2, the circuit court action was heard, and it was eventually granted.

Plaintiff moved the circuit court to reconsider its dismissal of suit No. 2 under § 6-5-440, but the motion was not successful. Plaintiff then appealed to this court which affirmed on the authority of Terrell v. City of Bessemer, 406 So.2d 337 (Ala.1981). See C & S Construction Co. v. Martin, 420 So.2d 788 (Ala.Civ.App.1982). Plaintiff did not seek a writ of certiorari from the Alabama Supreme Court.

After the appellate decision on suit No. 2 was rendered, plaintiff filed suit No. 3 in the District Court of Mobile County. Defendants countered with a motion for summary judgment, contending that the order of dismissal in suit No. 2 was res judicata. In its brief plaintiff concedes that it filed its “Rule 60 Motion for Relief from Judgment” (seeking to have the judgment in suit No. 2 altered to recite specifically that the dismissal was without prejudice) because it feared that the summary judgment motion in suit No. 3 would be successful. See A.R.Civ.P. 41(b). (“Unless the court in its order for dismissal otherwise specifies, a dismissal ... operates as an adjudication on the merits.”) It becomes apparent that plaintiff’s approach to the res judicata defense in suit No. 3 is to have the court in suit No. 2 declare that the dismissal of the action was a ruling in abatement and not an adjudication on the merits.

In opposition to plaintiffs appeal defendants contend that plaintiffs motion was properly denied as an untimely rule 59(e) motion, see A.R.Civ.P. 59(e) (“A motion to alter, amend, or vacate the judgment shall be filed not later than 30 days after entry of the judgment.”), or in the alternative that it is barred by the four-month deadline in A.R.Civ.P. 60(b)(1). But see Sack v. Low, 478 F.2d 360, 362 n. 1 (2d Cir.1973); Textron, Inc. v. Whitfield, 380 So.2d 259 (Ala.1979). However, we find it unnecessary to decide if the shorter limitations periods under either 59(e) or 60(b)(1) apply as we find no such abuse of discretion in the denial of what this court will consider as a rule 60(b)(6) motion without so deciding. See Fitch v. Insurance Co. of North America, 408 So.2d 1017 (Ala.Civ.App.1981); Garland v. Garland, 406 So.2d 415 (Ala.Civ.App.1981).

We do not interpret the case of Textron, Inc. v. Whitfield, 380 So.2d 259 (Ala.1979), to require reversal of the 60(b)(6) denial; instead we understand it only to state that a decision such as the one made by the trial court is discretionary. Respecting the idea that at some point judgments must be deemed final and in light of the facts and circumstances of the instant case, we find no abuse of discretion as to require remand. Accordingly, the ruling below is due to be affirmed.

AFFIRMED.

WRIGHT, P.J., and BRADLEY, J., concur.


text:
    Ex parte C & S CONSTRUCTION COMPANY, INC. (Re: C & S CONSTRUCTION CO., INC. v. Tom MARTIN and Carol Martin).
    83-8.
    Supreme Court of Alabama.
    Dec. 2, 1983.
    Melvin W. Brunson of Thiry, Maples & Brunson, Mobile, for petitioner.
    Joseph J. Boswell, Mobile, for respondents.
   MADDOX, Justice.

By denial of certiorari,, we should not be understood as holding that we agree with all the statements made in the opinion of the Court of Civil Appeals 442 So.2d 932 in this case, nor should we be understood as agreeing with the holding in C & S Construction Co. v. Martin, 420 So.2d 788 (Ala.Civ.App.1982), inasmuch as the petitioner did not request this Court to review that opinion and judgment.

WRIT DENIED.

TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. James C. McKENZIE, Respondent.
    No. 61682.
    Supreme Court of Florida.
    Nov. 23, 1983.
    Rehearing Denied Jan. 25, 1984.
    John F. Harkness, Jr., Executive Director, Stanley A. Spring, Staff Counsel, Tallahassee, and Patricia J. Brown, Bar Counsel, Tampa, for complainant.
    James C. McKenzie, in pro. per.
   PER CURIAM.

This attorney discipline case is before us on the petition of The Florida Bar to review the referee’s recommendation that respondent be found not guilty of violating The Florida Bar Code of Professional Responsibility, Disciplinary Rules 1-102(A)(1), 5-105(A), and 5-107(A)(l) and (2). The Bar asserts that the referee’s findings of fact and recommendation as to guilt are not supported by the record. We have jurisdiction. Art. V, § 15, Fla. Const.

We recognize that the referee’s “findings should be upheld unless clearly erroneous or without support in the evidence.” The Florida Bar v. Hirsch, 359 So.2d 856 (Fla.1978). We find, however, that the record in this case irrefutably establishes that respondent accepted a $1,000 retainer from an heir to an estate and accepted appointment as attorney for the personal representative of the same estate. This dual representation constitutes a violation of Disciplinary Rule 5-105(A).

Under the circumstances of the record in this case, we conclude that the findings of the referee were clearly erroneous. We reject the referee’s report and find respondent guilty of violating The Florida Bar Code of Professional Responsibility, Disciplinary Rules 1-102(A)(1) and 5-105(A). We further find that respondent’s conduct merits the imposition of a public reprimand. The publication of this opinion in Southern Reporter will serve as that public reprimand.

Costs in the amount of $706.70 are hereby taxed against the Respondent.

It is so ordered.

ALDERMAN, C.J., and OVERTON, MCDONALD, EHRLICH and SHAW, JJ., concur.


author: EHRLICH, Justice. OVERTON, Justice, McDONALD, Justice,

text:
    Terri WOOD, as Editor of the Verdict, Thomas R. Julin, and Campus Communications, Inc., Petitioners, v. Robert Q. MARSTON and Fletcher Baldwin, Respondents.
    No. 63341.
    Supreme Court of Florida.
    Dec. 1, 1983.

      Thomas R. Julin of Steel, Hector & Davis, Miami, Terri Wood, Marathon Shores, Sandra Bieber-Allen, and Larry G. Turner, Gainesville, for petitioners.
    Chesterfield Smith, Julian Clarkson, Michael Fogarty, and Gregg Thomas of Holland & Knight, Tampa, for respondents.
    Jim Smith, Atty. Gen., Joslyn Wilson and John J. Rimes, III, Asst. Attys. Gen., Tallahassee, amicus curiae for State of Fla., Dept, of Legal Affairs.
    Joseph W. Little, Gainesville, amicus curiae for Joseph W. Little and Winston P. Nagan, faculty members of the University of Florida College of Law.
    Steven Carta of Smith, Carta & Rings-muth, Fort Myers, amicus curiae for News-Press Pub. Co., Inc., Cape Publications, Inc., The Tribune Co., Palm Beach News Papers, Inc., and News & Sun-Sentinel, Inc.
    Parker D. Thomson, Sanford L. Bohrer, and Charles V. Senatore of Paul & Thomson, Miami, amicus curiae for The Miami Herald Pub. Co.
   EHRLICH, Justice.

The decision of the First District in Marston v. Wood, 425 So.2d 582 (Fla. 1st DCA 1982), is before us on grounds of direct and express conflict with decisions of this Court and other district courts. Town of Palm Beach v. Gradison, 296 So.2d 473 (Fla.1974); News-Press Publishing Co. v. Carlson, 410 So.2d 546 (Fla. 2d DCA 1982); Krause y. Reno, 366 So.2d 1244 (Fla. 3d DCA 1979). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We quash the decision of the First District.

At issue is the applicability of Florida’s Sunshine Law, section 286.011, Florida Statutes (1979), to a faculty committee which seeks out and screens applicants for a university position to which the university president must make the final appointment. When Joseph Julin announced his retirement as the dean of the University of Florida College of Law, university president Robert Q. Marston set in motion the mechanism by which a university dean is appointed. Sections 240.227(1) and (5), Florida Statutes (1979), vest in the university president authority to appoint academic deans. However, this authority is subject to a provision in the university constitution.

In making this appointment [a college dean] the President shall give consideration to the opinion of the faculty of the college concerned by consultation with a special committee of at least three faculty members elected by the faculty of the college.

Chapter IV, section 2(A)(3), Constitution of the University of Florida. (Emphasis supplied.) The president was also required to consult the faculty on the appointment by the accreditation standards of the American Association of Law Schools (AALS) and the American Bar Association (ABA). Nothing, however, required Marston to make the final choice from the recommended panel. Marston instructed the law school faculty to elect a search-and-screen committee. The ten-person committee consisted of seven faculty members, Chesterfield Smith, a prominent attorney and benefactor of the school, and two non-voting student members. The purpose of the committee was to solicit and screen applications for the deanship and to submit for faculty approval a list of the best qualified applicants before forwarding the list to Marston for the final selection. The committee was advised by a university vice president, Dr. Robert Bryan, in a document entitled “Openness Procedures for Search for Dean for the College of Law,” to treat any discussion of the qualifications of particular candidates as privileged communication to take place only in executive session. In other words, the evaluation process was to take place “out of the sunshine.”

Petitioners, representing local news media interests, filed a complaint against Mar-ston and Professor Fletcher Baldwin, the chairman of the committee, seeking a declaratory judgment and temporary and permanent injunction prohibiting Marston and Baldwin from excluding the press or the public from meetings of the search-and-screen committee. On April 2, 1980, Circuit Judge R.A. Green, Jr., entered an order granting the requested temporary injunction upon the posting of a bond. Mar-ston and Baldwin filed an appeal which resulted in an automatic stay of the injunction, but Green vacated the stay upon motion of the petitioners. The First District denied a motion to reinstate the stay and affirmed the temporary injunction without opinion.

On July 24, 1981, after a full evidentiary hearing at which both sides were represented and presented testimony, Circuit Judge Benjamin Tench entered final judgment permanently enjoining Marston and Baldwin from closing to the public any meetings of the search-and-screen committee during which official acts, including evaluations of candidates, would take place. Judge Tench later granted petitioners’ motion for attorneys’ fees and costs. Marston and Baldwin complied with the injunction in all respects and the search and screen procedures were subject to public scrutiny at all times. Nonetheless, respondents appealed the final judgment and the fee award.

The First District reversed the permanent injunction, the declaratory judgment and the cost and fee award and directed entry of a final judgment for the respondents. In reaching its decision, the First District found that the committee was shielded from the effect of the Sunshine Law by two common-law exceptions to its operation, the “staff exception” discussed in Occidental Chemical Co. v. Mayo, 351 So.2d 336 (Fla.1977) and Bennett v. Warden, 333 So.2d 97 (Fla. 2d DCA 1976), and “remoteness from the decision-making process” discussed in Bennett v. Warden.

We note that the Sunshine Law was enacted in the public interest to protect the public from “closed door” politics and, as such, the law must be broadly construed to effect its remedial and protective purpose. Canney v. Board of Public Instruction, 278 So.2d 260 (Fla.1973); Board of Public Instruction v. Doran, 224 So.2d 693 (Fla.1969). This Court has consistently refused to permit governmental entities to carry out decision-making functions outside the law. Canney; City of Miami Beach v. Berns, 245 So.2d 38 (Fla.1971); Doran. Respondents, however, argue that the Sunshine Law was never intended to be applicable to institutions of higher learning and that the search-and-screen committee is not a board or commission within the meaning of the law, contending that the legislature explicitly identifies universities or institutions of higher learning as such when it intends to include those entities within the provisions of an act. An examination of two chapters of Florida Statutes closely related in purpose and policy to the Sunshine Law refutes this contention.

Chapter 119, The Public Records Law, provides for public access to records made “in connection with the transaction of official business by any agency.” § 119.-011(1), Fla.Stat. (1981). Institutions of higher education are not specifically identified in the definition of agency. § 119.-011(2), Fla.Stat. (1981). Nonetheless, the legislature’s clear intention that the Public Record Law apply to universities is evidenced by the existence of two narrow exceptions to that law which limit access to certain student and employee records. See §§ 228.093, 240.237, 240.253, Fla.Stat. (1981). Thus, in the Public Records Law, the coverage is expressed generally; exemptions are identified explicitly.

Similarly, Chapter 120, Florida Statutes (1981), the Administrative Procedure Act (APA), which governs the manner in which governmental agencies may take official action, contains no explicit inclusion of universities or institutions of higher learning in its definition of “agency.” § 120.52(1), Fla.Stat. (1981). On the other hand “educational unit” is defined to include state universities. § 120.52(6), Fla.Stat. (1981). Significantly, the only use of the term “educational unit” in the APA occurs in expressly excluding preparation and modification of curricula by an educational unit from the definition of “rule.” § 120.-52(14)(c)(4), Fla.Stat. (1981). Again, the legislature has enacted a law of broad applicability to which it has made an explicit exception for one specific activity of state universities.

A similar pattern emerges in considering the application of the Sunshine Law to institutions of higher learning. The legislature has explicitly exempted search- and-screen committees evaluating applicants for the positions of Chancellor of the Board of Regents and presidents of community colleges from the requirements of section 286.011. §§ 240.209(2), 240.-319(3)(n), Fla.Stat. (1981). Thus, the conclusion is inescapable that the university is a state agency not exempted from the provisions of the Sunshine Act by any legislative enactment.

The search-and-screen committee had an admitted “fact-gathering” role in the solicitation and compilation of applications. It had an equally undisputed decision-making function in screening the applicants. In deciding which of the applicants to reject from further consideration, the committee performed a policy-based, decision-making function delegated to it by the president of the university through the faculty as a whole. Nor does the fact that the results were submitted to the faculty as a whole, which had the authority to review the work of the screening committee, render the committee’s function any less policy-based or decision-making. The district court placed great emphasis on the fact that the faculty as a whole rejected one entire panel of candidates submitted by the committee and recommended for further consideration a candidate rejected by the committee, but we do not find this point dispositive.

The facts of this case are clearly analogous to the facts in Town of Palm Beach v. Gradison, News-Press Publishing Co. v. Carlson and Krause v. Reno. Each of those cases involved delegation of a portion of the decision-making authority to an advisory group. In Town of Palm Beach, the advisory committee was comprised of citizens who functioned as an element of the zoning commission “to make tentative decisions guiding the zoning planners and advising the [Town] Council as to their ultimate zoning ordinances.” 296 So.2d at 474. In spite of the fact “that the Town Council had the authority to override any changes induced by the zoning commission and ‘would do so without timidity,’ ” id. at 475, the citizens’ advisory committee was found to be performing official acts and was therefore within the scope of the Sunshine Law. Analogously, in this case, the power of the faculty as a whole to review and reject the decisions of the committee does not alter the fact that those decisions were made. Those decisions are official acts which must be made in the sunshine.

In Krause, a city manager had appointed a citizens’ advisory group to screen applicants for the position of chief of police. The committee was authorized “to meet together and jointly screen applications, conduct interviews, evaluate candidates, and recommend four or five of the best candidates.” 366 So.2d at 1246. The threshold question there as here was whether the advisory body itself could be controlled by the Sunshine Law. The city manager, the individual authorized in his official capacity to make the hiring decision, was not bound to select the police chief from among the candidates recommended to him. The Third District, citing Town of Palm Beach, recognized that the city manager’s delegation of the elimination portion of the decision-making process to the citizens’ advisory committee made that committee a board within the meaning of the Sunshine Law. Id. at 1251-52. The parallel to the instant case is clear. In instructing the faculty to elect the search- and-screen committee to perform the elimination portion of the decision-making process, Marston delegated official acts to a board within the meaning of section 286.-011(1).

News-Publishing Co. v. Carlson involved a delegation of decision-making authority to an ad hoc committee comprised of staff members. The Second District, with a precise and accurate analysis of the import of Occidental Chemical and Bennett v. Warden, correctly focused on the nature of the act performed, not on the make-up of the committee or the proximity of the act to the final decision. Finding the acts to be decision-making, in spite of the review procedures prior to ratification of the decision made, and noting that the staff members were also decision-makers performing official acts, the district court properly held that the operations of that committee were open to public scrutiny.

The facts now before us illustrate a review of a decision-making process, which cannot serve to replace the public right of first-hand access to that process. Just as the faculty had a right to review and reject the committee’s work, it had discretion to pass the recommendations along without further discussion or evaluation. We are not persuaded by respondents’ characterization of the review process in News-Publishing as “rubber stamp” proceedings, distinguishable from the active review of committee decisions exercised by the full faculty here. Review is a second-hand retrospective reflection upon the decision-making process, not the firsthand observation to which the public is entitled. Where a body merely reviews decisions delegated to another entity, the potential for rubber-stamping always exists. To allow a review procedure to insulate the decision itself from public scrutiny invites circumvention of the Sunshine Law. We reaffirm the position enunciated by Justice Adkins in Town of Palm Beach:

The statute should be construed so as to frustrate all evasive devices. This can be accomplished only by embracing the collective inquiry and discussion stages within the terms of the statute, as long as such inquiry and discussion is conducted by any committee or other authority appointed and established by a governmental agency, and relates to any matter on which foreseeable action will be taken.

296 So.2d at 477.

Neither do we read Occidental and Bennett v. Warden as enunciating exceptions to the Sunshine Law so much as delineating certain exchanges of information which are not “decision-making” in nature, and which were thus not official acts within the meaning of the Law.

In Occidental Chemical, a purchaser of electric power from Florida Power Corporation sought to challenge the Public Service Commission’s ratification of a Florida Power Corporation rate increase on grounds that the decision to grant the increase was made in violation of the Sunshine Law. This Court rejected that challenge, holding, in the face of a “broad-brush argument” that commissioners’ meetings with staff should all take place in the sunshine, that the staff itself was not subject to the Sunshine Law. 351 So.2d at 341. This statement, taken out of context is the source of the argument for the existence of a staff exception. However, the Court elucidates the actual reason for refusing to invalidate the PSC decision further:

Occidental argues, more narrowly, that because the agenda conference lasted only 90 minutes and resulted in adoption of the pre-prepared staff proposal, the commissioners either met in private to reach a consensus or delegated their decision-making responsibility to staff_ There is, of course, no evidence in this record that the commissioners met in secret or used staff members as intermediaries in order to circumvent public meeting requirements. The Commission suggests that it is just as reasonable on this record to assume, contrary to Occidental’s assumptions, that the commissioners individually studied Florida Power’s petition in light of the extensive data they personally heard developed at the hearings, that they reached independent judgments on the many issues involved in rate-making, and that in doing so they would have been privileged to call upon staff members for legal advice or for an amplification of facts.

Id. at 341-42. (Emphasis supplied; footnote deleted.) Clearly, the privileged function of staff is to inform and advise the decision-maker; the Court does not hold that a delegation to staff members of decision-making authority would be similarly privileged. Rather, the record failed to support a charge of any such circumvention of the public meeting requirement. Thus the delegation issue was not properly before the Court.

Nor does Bennett v. Warden serve to shelter official acts delegated to staff from public scrutiny. In that case, Bennett, as president of St. Petersburg Junior College, met periodically in private with a group of junior-college employees to discuss working conditions at the junior college. This practice was challenged as violative of the Sunshine Law by a labor organizer frustrated in her attempts to unionize the employees. The Second District found no violation, holding, inter alia, that the meetings were not decision-making in nature, but were “for the purpose of ‘fact-finding’ to assist him in the execution of [his] duties,” 333 So.2d at 99, and we approve the holding that such fact-finding staff consultations are not subject to the Sunshine Law.

Bennett v. Warden is also the source of the second “exception” on which the district court relied, remoteness from the decision-making process. In examining the process by which information gathered in the informal meetings was analyzed, distilled and presented to the ultimate decision-making body, the district court identified three additional steps to ratification of any decision based on information gathered at these meetings. But central to the holding that the committee was shielded by remoteness were the further findings that

the facts are that the members thereof are appointed by and serve at the pleasure of the appellant, President Bennett; that there is no evidence beyond the naked knowledge of its existence and function that the Board of Trustees [the ultimate decision-maker] has reserved or exerted any control of any nature, kind or description over the CEC; that the matters discussed between the President and the CEC are not policy matters but, rather, constituted fact-finding expeditions by the President as executive officer of the Board.

333 So.2d at 100. (Emphasis supplied.) There is no implication that any number of intermediary steps would shelter the committee from public scrutiny if it were to perform certain official acts which would shape or limit the final action taken by the Board of Trustees.

No official act which is in and of itself decision-making can be “remote” from the decision-making process, regardless of how many decision-making steps go into the ultimate decision. Neither can the fact that members of the committee were staff shelter its official acts from public scrutiny.

[W]hen a member of the staff ceases to function in his capacity as a member of the staff and is appointed to a committee which is delegated authority normally within the governing body, he loses his identity as staff while operating on that committee and is accordingly included within the Sunshine Law.

News-Press Publishing Co., 410 So.2d at 548.

Nothing in the foregoing opinion is intended to impugn the respondents’ motivations or dedication to open government. We note that the concerns expressed in respondents’ brief are real and reasonable ones. Respondents vigorously contend that opening the committee’s meetings would threaten dearly held rights of academic freedom. This Court recognizes the necessity for the free exchange of ideas in academic forums, without fear of governmental reprisal, to foster deep thought and intellectual growth. Nonetheless, this freedom is not to be used as a shield which could, in some other case on other facts, be used to mask abuses of the rights of others. We hasten to reassure respondents that nothing in this decision gives the public the right to be more than spectators. The public has no authority to participate in or to interfere with the decision-making process. Were the chilling effect respondents apprehend balanced against any less compelling a consideration than Florida’s commitment to open government at all levels, we might agree that the burdens herein imposed were unduly onerous. Nonetheless, we note that the dean search did take place entirely in the sunshine and that the faculty and the committee were more than equal to the challenges of the situation.

For the foregoing reasons, the decision of the First District is quashed and the decisions of the Second District and Third District are approved. We affirm the trial court’s entry of declaratory judgment and the permanent injunction. The district court expressly declined to decide petitioners’ entitlement to attorneys’ fees and that issue is remanded to the district court for determination.

It is so ordered.

ALDERMAN, C.J., ADKINS, BOYD and SHAW, JJ„ concur.

OVERTON, J., concurs specially with an opinion.

McDONALD, J., dissents with an opinion.

OVERTON, Justice,

specially concurring.

I concur in the majority opinion. I write this concurring opinion to emphasize that it is important for public officials to recognize that this is the first decision of this Court which construes the “board or commission” provision of section 286.011, Florida Statutes (1981), to apply to committees established by a governmental executive. In Town of Palm Beach v. Gradison, 296 So.2d 478 (Fla.1974), the town council was clearly subject to the Sunshine Law. It established an advisory committee that functioned as an element of the council in its zoning responsibilities. This is somewhat different from the instant case, where the “executive” himself is not a “board or commission” under the open-meetings provision of the Sunshine Law. Allowing the town council in Gradison to create such a committee, which could meet in private, would clearly provide a means for governing bodies and boards to avoid the open-meetings requirement of the law. The majority holds that when the executive creates a committee and gives it decision- or policy-making authority (as distinguished from a fact-finding or a strictly advisory function), then the committee which has such authority must be subject to the Sunshine Law. I fully agree with the majority’s approval of Bennett v. Warden, 333 So.2d 97 (Fla. 2d DCA 1976), and that decision’s premise that a Sunshine Law violation does not occur when a government executive uses his staff for fact-finding and assistance in fulfilling his duties. See also Occidental Chemical Co. v. Mayo, 351 So.2d 336 (Fla.1977). In my view, absent other constraints, a university president could examine the applications for a dean vacancy, have his staff verify the information, conduct personal interviews, and consult with selected faculty members concerning their views. Such a process would not violate the Sunshine Law as it now exists. It would be similar to the governor, or any other constitutional officer or department head, selecting his personnel and staff.

To avoid future problems, I suggest that executive branch officials clearly delineate the functions and responsibilities of any special boards, commissions, or committees they create to assist them in carrying out their responsibilities.

McDONALD, Justice,

dissenting.

I dissent. The result reached by the district court should be approved.

Section 286.011, Florida Statutes (1979), does not apply to a search committee for a dean to a state university. It is quite evident that the legislature never intended or even contemplated that it would. For that subsection to apply:

(1) There must be a state agency or authority.
(2) There must be a board or commission of that state agency or authority.
(3) Official acts are to be taken.

I see no express or implied finding of the legislature that a university in the State University System is a state agency or authority. Chapter 240, Florida Statutes, deals generally with postsecondary education in Florida, and it is that chapter, rather than section 286.011, that the majority depends on here. Section 240.2011 defines the State University System, but does not indicate that its members are agencies or authorities of the state. On the other hand, that chapter, by section 240.207, creates the Board of Regents and describes its powers and duties; by section 240.307 it creates the State Community College Coordinating Board. These two bodies are obviously agencies of the state in supervising postsecondary education units.

The mission of the universities is not to govern or supervise, but rather is to develop human resources, to discover and disseminate knowledge, to extend knowledge and its application beyond the boundaries of its campuses, and the like. § 240.105(2). I recognize that the members of the State University System are subject to legislative enactments and that for budgetary purposes they are described as agencies. Nevertheless, I see no contemplation that an educational body was to be included within the purview of section 286.011.

I approve of the concept that what activities of a clearly designated state agency or authority subject to the Sunshine Law should be broadly construed, but I don’t think that concept should extend as to what groups or organizations are covered. Article I, section 23, provides that,

Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.

Hence, the determination of what is a public meeting vitally affects one’s constitutional right of privacy.

To include a college dean search committee within the purview of the public meetings law will require all applicants to discard their rights of privacy. The committee discussion of the applicants must be conducted for all to hear. I would think that these factors would have a chilling affect on qualified applicants from stepping forward. I also feel that requiring public discussion of the merits or demerits of an applicant would deter free and open discussion of an applicant by the members of the group. When we are not clearly required to do so we should not place such an inhibition on applicants for a deanship; we should not impair free and open discussion of the applicants. The majority’s opinion does both.

Even assuming that the state universities are state agencies or authorities, it is clear to me that search committees appointed to recommend to the president an appointee for a deanship were not intended to be subject to section 286.011. Subsection 240.209(2) excludes chancellor search committees from this statute even though the Board of Regents is surely a state authority. Subsection 240.319(3)(n) likewise excludes community college president search committees from the statute for the state agency known as the State Community College Coordinating Board. These provisions express a philosophy that search committees are not subject to the Sunshine Law. I have no doubt that, had the legislature contemplated that a member of the State University System was an agency within the contemplation of section 286.011, it would have declared that search committees formed to assist a university in fulfilling its powers and duties to appoint, remove, and reassign vice presidents, academic deans, and other policy level positions reporting directly to the president would not be subject to its provisions. Why indeed would a search committee formed to find a chancellor or a college president be excluded while a search committee to find a dean be included? The specific exclusion from 286.011 obviously was not made because no one contemplated a claim that such committees would be included.

Another cogent reason a search committee is not subject to section 286.011 is that it makes no official acts. It is simply an adviser, and here, is an adviser only to the faculty, which advises the president. On this issue I adopt the analysis of Judge Owen in the First District Court of Appeal’s opinion. In this instance the search committee and, indeed, the entire faculty, to whom the committee reports, are the functional equivalent of staff. University rules and regulations require that faculty members serve on committees. This service is, therefore, an ordinary staff function and responsibility of cataloguing, evaluating, and forwarding information. The official act in reference to a dean is the appointing of one, not the recommending of an appointment. I would not extend Krause v. Reno, 366 So.2d 1244 (Fla. 3d DCA 1979) to this case. If that case is good authority, I would distinguish it on the ground that there is a great deal of difference between a chief of police of a city and an educational dean. Education is different from the performance of police functions.

The only purpose of the committee here is to advise the faculty which advises the president of which persons, in its opinion, would be appropriate choices for dean. The decision-making power, the power to do an “official act,” rests ultimately and solely with the president. Thus, the majority incorrectly sees this as “a delegation to staff members of decision-making authority,” maj. op. at 940, and the majority’s reliance on the cases cited as being in conflict with the instant opinion is misplaced. The district court properly relied on the “staff exception” in reaching its decision. Occidental Chemical Co. v. Mayo, 351 So.2d 336 (Fla.1977); Bennett v. Warden, 333 So.2d 97 (Fla. 2d DCA 1976).

Finding the faculty search committee not subject to subsection 286.011(1) is a commonsense construction of that statute which will only serve to further the free exercise of academic and intellectual freedom. The majority advances a governmental interference into the selection of who is to lead an academic community which is totally inappropriate. In order to insure personal rights of privacy and academic freedom, legislation should be construed so that any intrusion is carefully limited. The majority has failed to do this.

I would approve the result reached by the district court.

      . Section 6-6(c) of the AALS bylaws states in part:
      The faculty shall exercise substantial control over decanal and faculty appointments. (Emphasis added.)
      The ABA Accreditation Standards, as interpreted by the ABA, require even more intimate involvement of the faculty with the selection. Interpretation 5 of Accreditation Standard 205, adopted by the ABA in December, 1978, provides:
      The law faculty shall have a substantial degree of involvement in the process by which a law dean is selected, appointed, or (as to terms over one year) reappointed. The process should entail a joint effort by the law faculty and the university administration of (sic) governing board. Except in rare cases and for compelling reasons, a law dean shall not be appointed or reappointed over the objections of a majority of the law faculty. (Emphasis added.)
      Accreditation is important to the University of Florida College of Law because article III, section 1(b) of the Rules of the Supreme Court Relating to Admissions to the Bar requires that to be eligible for admission to The Florida Bar one must have graduated from a school accredited either by the AALS or the ABA.

      . 286.011 Public meetings and records; public inspection; penalties.—
      (1) All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting.

      . We note that Marston, as president of the University of Florida, is an agency as defined in section 119.011(2), Florida Statutes (1979). Marston and Baldwin have been relieved of any personal liability for attorneys’ fees and costs pursuant to a stipulation entered into before the trial court by the parties that Marston and Baldwin were acting on the advice of the agency’s attorneys. Apparently, the parties agreed before the district court that the University of Florida would be responsible for any attorneys’ fees awarded. 425 So.2d at 588 (Wigginton, J., dissenting). We note that without stipulating as to entitlement, the parties did stipulate to an amount which would be a reasonable award for fees and costs of representing appellees before the district court.

       § 240.227, Fla.Stat. (1979), sets out the powers and duties of the universities, one of which, § 240.227(5), is involved here. If paragraph (5) is subject to § 286.011, it would seem that the activities prescribed in the other 25 paragraphs of § 240.227 would also have to be conducted in the sunshine.


author: ADKINS, Justice. OVERTON, Justice,

text:
    STATE of Florida, Petitioner, v. Arthur Hayes BURWICK, Respondent.
    No. 61630.
    Supreme Court of Florida.
    Dec. 8, 1983.
    Certiorari Denied April 2, 1984.
    See 104 S.Ct. 1719.

      Jim Smith, Atty. Gen. and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for petitioner.
    Melanie Ann Hines, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for respondent.
   ADKINS, Justice.

This petition is before the Court for review of the decision of the First District Court of Appeal in Burwick v. State, 408 So.2d 722 (Fla. 1st DCA 1982), which directly conflicts with the decision of the Second District Court of Appeal in Greenfield v. State, 337 So.2d 1021 (Fla. 2d DCA 1976). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

The issue is whether the state may introduce evidence of a defendant’s post-arrest conduct, including silence and the request to see an attorney after receiving Miranda (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)), warnings, as it relates solely to the issue of mental condition near the time of the offense when the defendant has asserted the insanity defense and the evidence is presented by the state in rebuttal. The First District Court of Appeal in Burwick held this type of evidence inadmissible, expressly disagreeing with the holding in Greenfield. We agree with the district court’s decision and disapprove the decision in Greenfield.

The material facts are not in dispute and are as follows. On the morning of May 29, 1980, the victim called the sheriff’s office to report that a man had broken into her home and had sexually assaulted her. Officer Logan of the Jacksonville Sheriff’s Department answered the call. The victim told Officer Logan that her attacker was Burwick, whom she had known socially for several months, and that she knew where he lived. The victim and Officer Logan drove to Burwick’s apartment, where they found him standing on the sidewalk talking to a man. The victim identified Burwick as the man who attacked her, and Officer Logan arrested him.

Before the case went to trial Burwick’s counsel filed a notice of intent to rely on the defense of insanity. In its case-in-chief the state introduced evidence of defendant’s behavior during the commission of the crime and of his conduct at the time of his arrest. This consisted of the victim’s testimony that she was awakened at about 5:30 a.m. by a man attempting to choke her and to cover her face with a chemical-soaked rag. She struggled and the man threatened, “If you don’t be still and quiet, I’ll kill you.” Although she could not see her attacker’s face, she recognized his voice as that of Burwick.

Her assailant continued to choke her and she passed out. She stated that when she came to she was naked, her hands were tied, and Burwick sexually assaulted her. When she began to cry, Burwick “quit everything, just stopped, put his clothes back on and started apologizing.” Burwick told her that “he was sorry that I had to know it was him doing this, he didn’t want me to know it was him.” Burwick continued to apologize and told her that he would wait if she wanted to call the police or, if she didn’t want to call the police, he would turn himself in to the psychiatric ward of the hospital for treatment. She told him that she just wanted him to leave, and he did so. After Burwick left, the victim dressed and called a neighbor, James Harris. When Mr. Harris arrived at her home, the victim told him about the attack. Mr. Harris stayed with her until she had given her children breakfast, and then he left to take her oldest child to school. After Mr. Harris left, the victim called the police. It was approximately 8:30 a.m.; the police answered the call about fifteen minutes later.

The state also called three members of the sheriff’s department to testify about the circumstances of Burwick’s arrest and his subsequent conduct. Officer Logan testified that at about 9:00 a.m., three hours after the attack, he placed Burwick under arrest as a result of the victim’s identification and read him his rights. The state attorney asked Officer Logan to describe Burwick’s apparent emotional state at the time of the arrest and the officer responded that “he appeared to be calm, relaxed. He apparently realized what was going on.” Sergeant Brown, Officer Logan’s supervisor, was asked to describe Burwick’s conduct when he interviewed him shortly after the arrest. Sergeant Brown stated that, when he arrived at the scene of the arrest, he read Burwick his rights and that Burwick stated he understood these rights. Burwick and Sergeant Brown conversed for a while and, according to Sergeant Brown’s testimony, Bur-wick did not seem emotionally upset, was clean and well-dressed and gave coherent responses to questions. Richard Pruitt, a homicide detective who also interviewed Burwick, testified that Burwick stated that he understood his rights, signed the rights form, appeared to understand the questions, and answered coherently and without hesitation.

The defense called Robert Russell, an inmate in the county jail who had shared a cell with Burwick, and Burwick himself. Mr. Russell testified that he had observed Burwick and thought that he “acts very oddly. He does crazy, disoriented things.” Burwick testified in his own behalf. He stated that he had suffered from a lot of emotional distress prior to the time of the assault and that he had been drinking a great deal. He claimed to have had a history of black-outs and to have been in a psychiatric hospital for a time. In response to questions on direct examination, Burwick stated that he remembered waking about 5:00 a.m. on May 29, feeling depressed, and being angry because his car wouldn’t start. Burwick testified that he remembered getting his car started and that “the next thing I fully remember is being in the house and in the room with [the victim] and by the state, the condition she was in, I could see that something had happened. I didn’t know what.” He never denied committing the assault, but stated that he was not aware of his actions, and that his mind did not clear until about eight o’clock the morning of the assault.

After the defense rested its case, the state, with the jury absent, advised the court that on rebuttal it “intended to elicit testimony from police officers regarding the defendant’s exercise of his constitutional rights in response to his assertion of insanity defense.” Under the authority of Greenfield, the trial judge allowed Officer Logan and Sergeant Brown to testify fully concerning Burwick’s conduct at the time of the arrest. Officer Logan stated that, after he read Burwick his rights, he asked Burwick if he would like to make a statement; Burwick replied that he did not. Sergeant Brown testified that his conversation with Burwick, which took place very soon after the arrest, ended with Burwick stating that he wanted to talk with a lawyer. The state, also in rebuttal of the insanity defense, offered the testimony of Dr. Miller, a psychiatrist, who stated that, in his expert opinion, Burwick could distinguish between right and wrong and understood the nature of the offense at the time the offense was committed.

On appeal, the First District Court of Appeal reversed the convictions and remanded for a new trial upon finding that the trial judge committed reversible error in allowing the state to rebut the insanity defense by introducing testimony describing Burwick’s refusal to make a statement and request for an attorney. The district court expressly rejected the Second District Court’s Greenfield decision.

We fully recognize that it is a fundamental principle of our constitutional law that a defendant cannot be penalized for exercising his fifth amendment privilege to refuse to communicate to the authorities information which would implicate him in the commission of a criminal offense. Miranda; Clark v. State, 363 So.2d 331 (Fla.1978); Bennett v. State, 316 So.2d 41 (Fla.1975). The reason for the rule holding inadmissible at trial evidence of the post-arrest silence and request for counsel of a defendant who has been advised of his Miranda rights is that the evidence creates an inference that the defendant is guilty of committing the criminal act. There is no dispute that it is reversible error for the prosecution to attempt to impeach a defendant’s alibi testimony by asking on cross-examination why he remained silent at the time of his arrest. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975).

The Greenfield decision permits the state to rebut the defense of insanity with evidence, taken during custodial interrogation, of a defendant’s desire to remain silent and his request for an attorney. That decision is based largely on the unfounded assumption that post-arrest, post-Miranda silence is probative of sanity. Inasmuch as this position cannot be reconciled with the principles of law announced in United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), and Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), we disagree.

In Hale, the United States Supreme Court weighed the probative value of post-arrest, post-Miranda silence and in so doing observed:

At the time of arrest and during custodial interrogation, innocent and guilty alike — perhaps particularly the innocent — may find the situation so intimidating that they may choose to stand mute. A variety of reasons may influence that decision. In these often emotional and confusing circumstances, a suspect may not have heard or fully understood the question, or may have felt there was no need to reply. See Tray-nor, The Devils of Due Process in Criminal Detection, Detention, and Trial, 33 U.Chi.L.Rev. 657, 676 (1966). He may have maintained silence out of fear or unwillingness to incriminate another. Or the arrestee may simply react with silence in response to the hostile and perhaps unfamiliar atmosphere surrounding his detention. In sum, the inherent pressures of in-custody interrogation exceed those of questioning before a grand jury and compound the difficulty of identifying the reason for silence.

422 U.S. at 177, 95 S.Ct. at 2137 (footnote omitted). The Court also recognized that an arrestee, who had just been informed of his Miranda rights and was particularly aware of his right to remain silent, could reasonably infer that his silence would not be used against him. With this in mind the Court continued as follows:

[FJailure to offer an explanation during the custodial interrogation can as easily be taken to indicate reliance on the right to remain silent as to support an inference that the explanatory testimony was a later fabrication. There is simply nothing to indicate which interpretation is more probably correct.

Id. at 177, 95 S.Ct. at 2137. In sum, the Supreme Court found post-arrest, post-M- randa silence inherently ambiguous and thus incapable of serving a legitimate probative purpose.

Regardless of the nature of the defense raised, the evidentiary doctrine in Hale remains intact. Post-arrest, post-M-randa silence is deemed to have dubious probative value by reason of the many and ambiguous explanations for such silence. 422 U.S. at 180, 95 S.Ct. at 2138. Contrary to what Greenfield intimates, these ambiguities attendant to post-Mrcmcfe silence do not suddenly disappear when an arres-tee’s mental condition is brought into issue. The same evidentiary problems addressed by the Supreme Court in Hale are present in the case before us. For example, one could reasonably conclude that custodial interrogation might intimidate a mentally unstable person into silence. Likewise, an emotionally disturbed person could be reasonably thought to rely on the assurances given during a Miranda warning and thereafter choose to remain silent. In sum, just what induces post-arrest, post-Mran-da silence remains as much a mystery today as it did at the time of the Hale decision. Silence in the face of accusation is an enigma and should not be determinative of one’s mental condition just as it is not determinative of one’s guilt. Accordingly, the state should not be permitted to confirm Burwick’s mental state with evidence of his post-Miranda silence.

With equal dissatisfaction we reflect upon the constitutional infirmities which plague the Greenfield decision. Burwick was arrested, informed that he had a right to remain silent, that anything he said might be used against him, and that he had a right to an attorney if he so desired. See Miranda v. Arizona. Above all, he was implicitly assured that he would not be penalized if he should choose to exercise these Miranda rights. Doyle v. Ohio. The decision in Greenfield capriciously disavows those governmental assurances contained within the Miranda warning and permits the state to go back on its word. It is fundamentally unfair for the state to lure Burwick into remaining silent then impeach the man with this very same silence. To permit the state to benefit from the fruits of its own deceptions violates the due process clause of the fourteenth amendment and article I, section 9, of the Florida Constitution. See Doyle v. Ohio; see also United States v. Hale, 422 U.S. 171, 182, 95 S.Ct. 2133, 2139, 45 L.Ed.2d 99 (White, J., Concurring).

Our decision today is thoroughly consistent with our decision in Parkin v. State, 238 So.2d 817 (Fla.1970). In that case we held that where a defendant in a criminal case serves notice that she will rely upon a defense of insanity, her rights to freedom from self-incrimination are not invaded when the court requires her to submit to psychiatric examination by court appointed psychiatrists. Id. at 822. We carefully limited the scope of that decision in order to safeguard the privilege against self-incrimination from just the sort of situation we face in the instant case. We stated:

In other words, the Court and the State should not in their inquiry go beyond eliciting the opinion of the expert as to sanity or insanity, and should not inquire as to information concerning the alleged offense provided by a defendant during his interview....

Id. at 820. In the instant case, the prosecution could have elicited testimony which would demonstrate the fact that the defendant carried on a rational and coherent conversation without specifically revealing that he chose to remain silent and assert his constitutional rights.

Accordingly, we approve the decision of the First District Court of Appeal and disapprove the decision of the Second District in Greenfield v. State.

It is so ordered.

BOYD, McDonald and EHRLICH, JJ., concur.

OVERTON, J., dissents with an opinion, with which ALDERMAN, C.J., concurs.

OVERTON, Justice,

dissenting.

I dissent. In my view, when a defendant has asserted the insanity defense the state should be able to introduce evidence of a defendant’s post-arrest conduct, including his silence after receiving Miranda warnings, so long as such evidence relates solely to the issue of the defendant’s mental condition near the time of the offense and is presented by the state in rebuttal to mental condition evidence presented by the defendant. In this case, there was no issue concerning whether the appellant committed the act for which he was charged. The only real issue was whether the appellant was sane at the time of the offense.

I recognize that it is a fundamental principle of constitutional law that a defendant cannot be penalized for exercising his fifth amendment privilege to refuse to communicate to the authorities information which would implicate him in the commission of a criminal offense. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Clark v. State, 363 So.2d 331 (Fla.1978); Bennett v. State, 316 So.2d 41 (Fla.1975). Further, I agree that it is reversible error for the prosecution to attempt to impeach a defendant’s alibi testimony by asking the defendant on cross examination why he remained silent at the time of his arrest. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975). There are exceptions, however, and one is that a prosecutor may use a defendant’s post-arrest silence to impeach exculpatory testimony when there was no evidence that the defendant had received Miranda warnings. Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982). It is reasoned that evidence of silence creates an inference that the defendant is guilty of committing the criminal act and the purpose of the rule is to avoid such an inference. In the instant case, however, there is no question that the act was committed by Burwick. The only issue was the defendant’s mental condition at the time of the offense. Mental competency is a distinct separate issue to which the inference of guilt by silence just does not logically or reasonably apply.

The appellant, Burwick, claimed as his sole defense that he was insane at the time he assaulted the victim and he offered testimony tending to place his sanity in doubt. In Florida the defendant is presumed sane, but, once the defendant introduces evidence indicating insanity, the state must rebut the insanity defense by proving the defendant sane beyond a reasonable doubt. Holmes v. State, 374 So.2d 944, 948 (Fla.1979), cert. denied, 446 U.S. 913, 100 S.Ct. 1845, 64 L.Ed.2d 267 (1980); Parkin v. State, 238 So.2d 817 (Fla.1970). The state presented evidence of Burwick’s conduct at the time of his arrest, including his acknowledgment of his rights and his desire to remain silent, in rebuttal to the (1) testimony of an inmate in the county jail who shared a cell with Burwick and testified that Burwick “acts very oddly” and “does crazy, disoriented things,” and (2) Bur-wick’s testimony that his mind was not clear at the time of the offense. The state’s rebuttal testimony was intended to show Burwick’s mental condition at the time of his arrest which was between the time of the offense and the time when the cellmate made his observation. Burwick, by claiming insanity and putting on this testimony, opened the door for the state to present this relevant, probative evidence concerning Burwick’s state of mind at the time of his arrest. I conclude that the reason for the rule, as enunciated in Doyle and Hale, is not present in the instant case. Evidence of how Burwick responded to the Miranda warnings is admissible, in my view, as long as such evidence goes solely to the issue of Burwick’s competency at the time of the offense. This conclusion has support in federal jurisdictions. See Sulie v. Duckworth, 689 F.2d 128 (7th Cir.1982), cert. denied, — U.S.-, 103 S.Ct. 1439, 75 L.Ed.2d 796 (1983); United States v. Trujillo, 578 F.2d 285 (10th Cir.), cert. denied, 439 U.S. 858, 99 S.Ct. 175, 58 L.Ed.2d 166 (1978). I find that the majority unduly restricts the state in its presentation of relevant, probative, rebuttal evidence to meet its burden of proving a defendant sane beyond a reasonable doubt.

For the reasons expressed, I would quash the decision of the district court in the instant case.

ALDERMAN, C.J., concurs.


author: EHRLICH, Justice. BOYD, Justice,

text:
    DEPARTMENT OF REVENUE, Petitioner, v. Suzanne JOHNSTON, as Flagler County Property Appraiser, and Flagler County, Respondents.
    No. 63013.
    Supreme Court of Florida.
    Dec. 15, 1983.
    Jim Smith, Atty. Gen. and J. Terrell Williams, Asst. Atty. Gen., Tallahassee, for petitioner.
    Ronald E. Clark, Palatka, for respondents.
    Talbot D’Alemberte of Steel, Hector & Davis, Miami, for City of Bunnell, Barry Ferguson, Mayor; Flagler County Chamber of Commerce; Flagler County Council on Aging, David Siegel, Chairman; Flagler County School Bd., Larry S. Goodemote, Chairman; ITT-Community Development Corp.; Palm Coast AARP Chapter and Palm Coast Kiwanis Chapter, G.B. Coles-worthy, Jr.; Palm Coast Civil Ass’n, Warren Wolfert, Vice-President; Palm Coast Community Center, Carol King, President; Shangri-La Home Owners Ass’n, Elizabeth C. Neimeyer, President; and Woodlands at Palm Coast Ass’n # 1, Jerome Wunder, President, amicus curiae.
   EHRLICH, Justice.

This cause is before the Court because of apparent conflict between the opinion of the district court below, State, Department of Revenue v. Johnston, 422 So.2d 935 (Fla. 5th DCA 1982), and opinions of two other district courts, State, Department of Revenue v. Markham, 426 So.2d 555 (Fla. 4th DCA 1982), and State, Department of Revenue v. Adkinson, 409 So.2d 53 (Fla. 1st DCA 1982). We accepted jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution. Because we find this cause distinguishable on its facts from those cited in conflict, we discharge jurisdiction.

All three cases arose in the wake of the Florida legislature’s passage of the Truth in Millage (TRIM) Bill requiring county property appraisers to appraise property at just valuation, that is, one hundred per cent of fair market value. In the case of Fla-gler County, the property reappraisal was hampered by a small staff, lack of computer assistance and a limited budget. Flagler is a small county containing a relatively high number of individual parcels. The property appraiser’s staff was unable to complete the reappraisal and the new tax roll in time to prepare the 1980 tax bills. The property appraiser went before the circuit court, pursuant to section 193.1145, Florida Statutes (Supp.1980), seeking adoption of an interim tax roll on which taxes for 1980 could be collected. The circuit court entered an order certifying the interim roll. It is undisputed that this tax roll did not represent just valuation.

After several extensions of time in which to file, the final tax roll was submitted to the Department of Revenue on May 29, 1981 and accepted. On June 17, 1981, the property appraiser filed a motion in the circuit court to have the interim roll declared the final roll, pursuant to section 193.1145(8)(d), Florida Statutes (Supp.1980), which provides:

However, the court, upon a determination that the amount to be supplementally billed and refunded is insufficient to warrant a separate billing or that the length of time until the next regular issuance of ad valorem tax bills is similarly insufficient, may authorize the tax collector to withhold issuance of supplemental bills and refunds until issuance of the next year’s tax bills. At that time the amount due or the refund amount shall be added to or subtracted from the amount of current taxes due on each parcel, provided that the current tax and the prior year’s tax or refund shall be shown separately on the bill. Alternatively, at the option of the tax collector, separate bills and statements of refund may be issued. In addition, the Court may find that the implementation and administration of a reconciliation between the interim and final rolls or that the preparation of a final roll is not in the best interest of the public. Upon so finding, the court may enter an order confirming taxes levied against interim assessments to be final for the year in question; property appraisal adjustment board petitions may then be filed with respect to interim assessments, and delinquent provisional taxes shall then be subject to the provisions of chapter 197.

(Emphasis supplied.)

The circuit court conducted a full eviden-tiary hearing, at which the Department of Revenue alone opposed the motion; no Fla-gler County taxpayer opposed confirmation of the interim roll. Testimony was presented, primarily by county officers, showing that reconciliation would require disruption of the county’s adopted budget, with a resulting cut-back in services and capital projects; that the county would lose $1.4 million in state revenues which would not be immediately replaceable from increased county revenues; that because of limited staff and resources the process of reconciliation would halt preparation of the 1981 tax roll, which was projected as being in full compliance with the TRIM Bill requirements. In short, the undisputed testimony presented the picture of a county caught on a treadmill of “catching up” on just valuation without being able to achieve the goal mandated by the legislature absent fiscal chaos.

The trial judge in weighing these facts, “considered the impact of revenues on a State wide basis” and “weighed impact upon the economy and the orderly flow of Government functions in Flagler County.” In light of the legislature’s own statement of policy regarding adoption of interim rolls as final — “It is the intent of the legislature that no undue restraint shall be placed on the ability of local government to finance its activities in a timely and orderly fashion.” § 193.1145(1), Fla.Stat. (Supp. 1980) — the court found that “the ‘best interest of the public’ whether limited to the County of Flagler or the general public of the State of Florida, would be best served by confirming the taxes levied against the interim assessments to be final in 1980.”

The facts recited above are not analytically the same as those in Adkinson. There, the property appraiser had made no attempt to correct a tax roll disapproved by the Department of Revenue, as ordered by the court. The trial court, in certifying the taxes collected on the deficient interim roll as final, had weighed costs and benefits only at the local level. The First District correctly held that state-wide impact was significant to the determination of what would be “in the best interest of the public.”

In Markham, the Fourth District Court of Appeal recognized many of the same factors raised by Flagler County, but found they did not, in Broward County, pose a threat of governmental fiscal and administrative chaos, a finding of fact necessary to the granting of the Flagler County’s motion for certification. We note that the Fourth District, in dicta, stated that the interpretation given the statute by the Fifth District rendered the statute unconstitutional by permitting certification of a tax levied against less than just valuation. However, on rehearing, that court acknowledged “the trial court’s inherent power to head off such [governmental] crisis.” 426 So.2d at 566.

Because we find no conflict, we discharge jurisdiction.

It is so ordered.

ALDERMAN, C.J., and ADKINS, OVERTON, McDonald and SHAW, JJ., concur.

BOYD, J., dissents with an opinion.

BOYD, Justice,

dissenting.

I dissent to the ruling of the Court. I would quash the decision of the district court of appeal and disapprove its rationale. Article VII, section 4 of the Florida Constitution requires that assessments of all property for ad valorem taxation purposes be at “just valuation.” The requirement of “just valuation” was also in predecessor provisions of our. state constitutions before 1968. Art. IX, § 1, Fla. Const. (1885); art. XII, § 1, Fla. Const. (1868). The language was held by this Court to require assessment of property at full market value as early as 1945. See Root v. Wood, 155 Fla. 613, 21 So.2d 133 (1945). There are no expressed exceptions in article VII, section 4, and the only judicially recognized implied exception to the full-market-value requirement has arisen only in cases where relief was needed to avert governmental catastrophe. Slay v. Department of Revenue, 317 So.2d 744 (Fla.1975); State ex rel. Butscher v. Dickinson, 196 So.2d 105 (Fla.1966); State ex rel. Glynn v. McNayr, 133 So.2d 312 (Fla.1961). None of those cases, however, was like this case, because in none of those cases was there an available final tax roll assessing property at its full value. In the present case the property appraiser submitted a final tax roll for approval by the Department of Revenue and it was approved on May 29, 1981. Then, on June 17, 1981, the appraiser filed the complaint seeking to have the interim roll declared as the final roll. Thus a final roll assessing property at full market value existed when the court decided to declare the interim roll as final. That existing, approved, and valid final roll should have been ordered adopted and used.

My review of the record convinces me that there was insufficient evidence to support the trial court’s factual conclusions and its decision to relieve the property appraiser of the duty to use the valid final roll. This case is not substantially different from State Department of Revenue v. Markham, 426 So.2d 555 (Fla. 4th DCA 1982) and State Department of Revenue v. Adkinson, 409 So.2d 53 (Fla. 1st DCA 1982). Thus the failure to use the valid final full-market value assessment roll is being excused on the ground of inconvenience. I therefore dissent.