source: Caselaw Access Project

author: LABARGA, C.J. LAWSON, J., POLSTON, J.,

license: Public Domain

text:
    Glenda Martinez SMITH, Petitioner, v. J. Alan SMITH, Respondent.
    No. SC16-1312
    Supreme Court of Florida.
    [August 31, 2017]

      Jennifer Suzanne Carroll of Law Offices of Jennifer S. Carroll, P.A., Palm Beach Gardens, Florida, for Petitioner
    No appearance for Respondent
    Robert W. Goldman of Goldman, Felco-ski & Stone, P.A., Naples, Florida; Kenneth B. Bell, and John W. Little, III of Gunster, West Palm Beach, Florida, for Amicus Curiae The Real Property, Probate & Trust Law Section of the Florida Bar
    Ellen S. Morris of Elder Law Associates, P.A., Boca Raton, Florida; Gerald L. Hemness of Law Office of Emma Hemness, P.A., Brandon, Florida; and Cary Moss of Sawyer & Sawyer, P.A., Orlando, Florida, for Amici Curiae The Elder Law Section of the Florida Bar and Academy of Florida Elder Law Attorneys
   LABARGA, C.J.

This case is before the Court for review of the decision of the Fourth District Court of Appeal in Smith v. Smith, 199 So.3d 911 (Fla. 4th DCA 2016). The district court certified the following question to be of great public importance:

WHERE THE FUNDAMENTAL RIGHT TO MARRY HAS NOT BEEN REMOVED FROM A WARD UNDER SECTION 744.32Í6(2)(a), FLORIDA STATUTES, DOES 'THE STATUTE REQUIRE THE WARD TO OBTAIN APPROVAL FROM THE COURT PRIOR TO EXERCISING THE,RIGHT TO MARRY, WITHOUT WHICH APPROVAL THE MARRIAGE IS ABSOLUTELY VOID, OR DOES 'SUCH FAILURE RENDER THE MARRIAGE VOIDABLE, AS COURT APPROVAL COULD BE CONFERRED AFTER THE MARRIAGE? ■

Smith v. Smith, 195 So.3d 416, 416 (Fla. 4th DCA 2016). We have jurisdiction. See art. V, § 3(b)(4); Fla. Const. For the reasons discussed below, we quash the decision of the Fourth District and hold that where the right to contract has been removed under section 744.3215(2)(a), Florida Statutes (2016), the ward is not required to obtain court approval prior to exercising the right to marry, but court approval is necessary before 'such a marriage can be given legal effect.

OVERVIEW

When a person is deemed incapacitated, a guardianship court may remove some of his or her rights. See § 744.331, Fla. Stat. (2016). Section 744,3216, Florida Statutes (2016), titled “Rights of persons determined incapacitated,” separates the rights of an incapacitated person into three distinct categories: rights retained by the incapacitated person (or rights that cannot be removed through incapacity proceedings); rights that can be removed and delegated to a guardian; and rights that can be removed, but not delegated to a guardian. The right to marry falls within the latter category, under section 744.3215(2)(a), which provides:

(2) Rights that may be removed from a person by an order determining incapacity but not delegated to a guardian include the right:
(a) To marry. If the right to enter into a contract has been removed, the right to marry is subject to court approval. .

Consequently, a guardianship court may remove an incapacitated person’s right to marry if there is clear and convincing evidence that he or she is incapacitated with respect to that right. Id.; § 744.331(6), Fla. Stat. However, even when a guardianship court does not remove the right to marry, an incapacitated person’s right to marry becomes “subject to court approval” when his or her right to contract has been removed. § 744.3215(2)(a), Fla. Stat. The question presented in this case is whether court approval must be obtained before the incapacitated person marries.

FACTS AND PROCEDURAL HISTORY

This annulment challenge is an offshoot of a guardianship case initiated by the daughter of Respondent, J. Alan Smith (Alan), in 2010 after Alan was involved in an automobile accident in which he suffered head trauma. Smith, 199 So.3d at 911; id. at 914 (Warner, J., dissenting); see also Martinez v. Guardianship of Smith, 159 So.3d 394, 396 (Fla. 4th DCA 2015). According to Alan’s daughter, Alan was no longer competent to handle his financial affairs or care for his property as a result of his diminished mental capacity. In April 2010, Alan was determined to be partially incapacitated. Alan’s right to contract and his right to manage property were removed and delegated to John Cramer, who was appointed to be Alan’s limited guardian of property. However, the court specifically found there was “no incapacity on the part of [Alan] that wquld warrant a guardian of a person.” The court issued an Order that provided:

The following rights of the Ward are delegated to the Guardian appointed by this Order:
[X] to Contract,
[X] to manage the property of the Ward
Note: If the right of the Ward to Contract has been delegated to the Guardian but the right to marry is retained, then the right to marry is subject to Court approval.[]

(Emphasis added.)

It is undisputed that Petitioner, Glenda Martinez Smith (Glenda), met and became engaged to Alan before he was deemed incapacitated. In 2009, the year prior to his accident, Alan executed a Designation of Health Care Surrogate and Living Will Declaration naming Glenda as his health care surrogate and preneed guardian. Alan also gave Glenda durable power of attorney.

In December 2011, Glenda and Alan were married. Court approval was not obtained prior to the marriage ceremony. However, Glenda asked Cramer to seek court approval on two separate occasions, but Cramer refused.

Alan’s court-appointed counsel, Lynne Hennessey, filed a petition for annulment in early 2013 based solely on the assertion that the marriage was void because court approval had not been obtained prior to the act of marriage. Glenda then moved to ratify the marriage, and Hennessey moved for summary judgment. After a hearing, the court denied Glenda’s motion and granted Hennessey’s motion, concluding section 744.3215(2)(a) requires prior court approval because the “statute does not contemplate the right to ratify or somehow prove an existing marriage.” Because neither Alan nor Glenda obtained court approval before marrying, the court concluded their marriage was void and incapable of ratification.

Glenda appealed the final judgment of annulment, arguing that neither the statute nor the order that removed Alan’s right to contract explicitly required prior court approval, and as such, the marriage could be ratified by obtaining approval after the marriage was solemnized. Glenda also asserted such approval had been obtained during a December 2012 hearing. The Fourth District Court of Appeal rejected Glenda’s assertions and affirmed the trial court’s decision. Smith, 199 So.3d at 912. The district court agreed with the trial court’s rationale that the plain language of the statute

does not state that “a marriage” is subject to court approval, but rather, it states that “the right to marry” is subject to court approval. Therefore, if a person deemed incapacitated has had his or her right to contract removed, he or she has no right to marry unless the court gives its approval.

Id. The district court explained that, because a “marriage entered into by a person with no right to marry is void ... it follows that in order to enter into a valid marriage, an incapacitated person who has had his or her right to contract removed must first ask the court to approve his or her right to marry.” Id. Accordingly, the district court held “the trial court correctly determined that the marriage was void.” Id.

The district court also concluded that because

the marriage was void from the inception, [Glenda’s] argument that the court “ratified” the marriage by acknowledging it at the December 18, 2012 hearing is without merit. A void marriage, in legal contemplation, has never existed and, therefore, cannot be ratified. At any rate, this Court reversed the court’s order stemming from the December 18, 2012 hearing and remanded for a new hearing. By virtue of our mandate, nothing the court did on December 18, 2012 has any binding legal effect.

Id. at 912 n.1 (citations omitted).

Judge Warner disagreed with the majority’s interpretation of section 744.3215(2)(a). Id. at 913 (Warner, J., dissenting). She found it significant both that the statute “does not state that marriage is prohibited unless approval is given prior to the marriage” and that “the right to marry was not removed from [Alan] at the time of the marriage ceremony.” Id. at 916-17 (Warner, J., dissenting). Judge Warner stated she “would hold that the failure to obtain court approval prior to the marriage at most rendered the marriage voidable, not void, so that the court could approve the union post-marriage.” Id. at 913 (Warner, J., dissenting).

After the district court issued its decision, Glenda filed a motion to certify a question of great public importance, which the district court granted. Smith, 195 So.3d at 416. This review follows.

ANALYSIS

The certified question presents a pure question of law subject to a de novo review. See W. Fla. Reg’l Med. Ctr. v. See, 79 So.3d 1, 8 (Fla. 2012) (“Statutory and constitutional construction are questions of law subject to a de novo review.”). A court’s purpose in construing a statute is to give effect to the legislative intent underlying that statute. Davila v. State, 75 So.3d 192, 195 (Fla. 2011). Discerning legislative intent requires a court to look first to the plain language of the statute. Id. When the language is unambiguous and conveys a clear meaning, “the statute must be given its plain and obvious meaning.” Id. at 195-96 (quoting Velez v. Miami-Dade Cty. Police Dep’t, 934 So.2d 1162, 1164 (Fla. 2006)). ‘When necessary, the plain and ordinary meaning can be ascertained by reference to a dictionary.” Bennett v. St. Vincent’s Med. Ctr., Inc., 71 So.3d 828, 839 (Fla. 2011). An unambiguous statute cannot be construed “in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications.” McLaughlin v. State, 721 So.2d 1170, 1172 (Fla. 1998) (quoting Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984)). However, when a statute is subject to more than one interpretation, the rules of statutory construction should be applied to resolve the ambiguity. Greenfield v. Daniels, 51 So.3d 421, 425 (Fla. 2010). This may include an examination of the statute’s legislative history and the purpose behind its enactment. W. Fla. Reg’l Med. Ctr., 79 So.3d at 9.

The certified question asks whether the failure to obtain court approval pursuant to section 744.3215(2)(a) renders the ward’s marriage “void” or “voidable.” To resolve the matter, we will first discuss the meaning of these terms as traditionally defined by Florida precedent in the marital context. Then, we will look to the plain language of section 744,3215(2)(a) and the legislative history of the Florida Guardianship Laws to ascertain whether the Legislature intended either of these terms to apply to the disputed provision.

“Void” and “Voidable” Marriages

Although thé right to marry is considered a fundamental right, it is not unconditional. A marriage may be rendered invalid either by statute or circumstance. As this Court has explained,

[t]o constitute a valid marriage, the marital contract must be voluntarily en-' tered into in' good faith for the purposes actuating such contracts, the parties must be legally eligible to make the contract, and their status must be such that the union will not be contrary to public policy or obnoxious to the prevailing social mores.

Goldman v. Dithrich, 131 Fla. 408, 179 So. 715, 717 (1938).

An invalid marriage has traditionally been considered either void or voidable. “A marriage is considered voidable ... when it is possible for the parties to subsequently ratify it when there has been removed' a disabling dr voiding impediment which was unknown to both parties at the time the inválid marriage was originally contracted.” Jones v. Jones, 119 Fla. 824, 161 So. 836, 838 (1935). In other words, it is possible for a voidable marriage to ripen into a valid marriage if it is ratified by the parties. For example, minors who get married without parental consent may later ratify the marriage once they reach the age of majority. See, e.g., Needam v. Needam, 183 Va. 681, 33 S.E.2d 288 (1945). Likewise, a marriage entered into where a party lacks mental capacity (due to intoxication, for'example) may later be ratified upon regaining capacity. See, e.g., Mahan v. Mahan, 88 So.2d 545, 548 (Fla. 1956) (holding marriage entered into while intoxicated is invalid unless later ratified by the parties); see also Prine v. Prine, 36 Fla. 676, 18 So. 781, 785 (1895) (recognizing it is “well established that a marriage, invalid at the time for want of mental capacity, may be ratified and made valid afterwards by any acts or conduct which amount to a recognition of its validity.”). Importantly, a “voidable marriage is good for every purpose until avoided[;] it can be attacked only in a direct proceeding during the life of the parties.” Kuehmsted v. Turnwall, 103 Fla. 1180, 138 So. 775, 777 (1932) (emphasis added) (citing 18 R. C. L. 447). Upon the death of either party, “the marriage is good ab initio.” Id,

In contrast, a void marriage is generally one that is incapable of ratification or prohibited by statute. When.a marriage is deemed void, “the effect . so far as [it] concerns the conferring of legal rights upon the-parties, is as though no marriage had ever taken place.” Id. (quoting 18 R. C. L, 446). Due to the harshness of declaring a marriage void, few circumstances have been identified as requiring such a result. See Mahan, 88 So.2d at 548 (“The marriage contract is one of the most sacred of compacts. It should-not be set aside or dissolved in the absence of clear and substantial proof that annulment or dissolution is justified under the - law.”). Historically, permanent incapacity and insanity have been among the rare circumstances which render a marriage void. Kuehmsted, 138 So. at 777 (At the common law, the canonical disabilities of con-sanguinities, affinity, and impotence rendered the marriage voidable and not void, while insanity rendered it absolutely void.”). Unlike a voidable marriage, the validity of a void marriage may be challenged at any time, including after the death of the alleged spouses. Id.

Plain Language of Section 744.3215(2)(a)

The plain language of section 744.3215(2)(a) reflects that the Legislature did not intend for the type of invalid marriage at issue in this case to be classified as either void or voidable according to how these terms have beéri defined under Florida precedent.

The disputed provision does not use the terms “void” or “voidable,” nor does it use language that embodies the traditional definitions of these terms. Other statutes clearly identify circumstances that render a marriage void; however, such language was not used in section 744.3215(2)(a). For example, section 741.211, Florida Statutes (2016), is titled “Common-law marriages void,” and provides “[n]o common-law marriage ... shall be valid.” (Emphasis added.) Similarly, section 741.21, Florida Statutes (2016), is titled “Incestuous marriages prohibited,” and provides that a man or woman “may not” marry certain relatives. (Emphasis added.) In contrast, section 744.3215(2)(a) does not expressly provide that an incapacitated person whose right to contract has been removed is “prohibited” from marrying unless court approval is obtained, or that any marriage entered into would be “void” absent such approval.

Moreover, the term “subject” in the disputed clause of section 744.32l5(2)(a)— “the right to marry is subject to court approval”—is not defined as a condition precedent. Merriam-Webster defines the term as “contingent on or under the influence of some later action ([e.g.,] the plan is subject to discussion).” Merriam-Webster’s Collegiate Dictionary 1243 (11th ed. 2014) (emphasis added): According to Webster’s International Dictionary, “subject” is defined as “likely to be'conditioned, affected, • or modified in some indicated way: having a contingent relation to something and usu[ally] dependent on such relation for final form, validity, or significance.” Webster’s Third New International Dictionary 2275 (1993). In the context of section 744.3215(2)(a), “the right to marry is subject to court approval” means that the ward’s right tó marry is contingent on court approval, though that approval may come later in time, such as after the marriage ceremony. Although' the validity of the marriage itself depends on court approval, nowhere in the statute does it provide that court approval must be obtained prior to marrying.

Unlike section 744.3215(2)(a), other provisions within the Florida Guardianship Laws expressly require court approval as a condition precedent. See generally BellSouth Telecomm., Inc. v. Meeks, 863 So.2d 287, 291 (Fla. 2003) (holding that “when the [Legislature includes a provision in one section of a statute but excludes it in another, courts will deem the difference intentional and will assign meaning to the omission”). Section 744.3215(4), Florida Statutes (2016), lists actions a guardian may not take “[w]ith~ out first obtaining specific authority from the court.” (Emphasis added.) Similarly, section 744.446(2), Florida Statutes (2016), requires “prior approval” by court order before a guardian can engage in certain activities, and section 744.441, Florida Statutes (2016), delineates the powers a guardian has “[ajfter obtaining approval of the court.” (Emphasis added.) See also § 744.1098(1), Fla Stat. (2016) (requiring a guardian to “obtain court approval prior to removal of the ward” to a nonadjacent county (emphasis added)). Although these subsections are distinguishable because each addresses acts of the guardian that require court approval, and not acts by the incapacitated person, they are nonetheless illustrative of language used by the Legislature to explicitly mandate prior court approval. The fact that such language was not used in section 744.3215(2)(a) indicates the Legislature did not intend to require prior court approval.

The plain language of section 744.3215(2)(a) is likewise inconsistent with the traditional meaning of a “voidable” marriage. As previously discussed, the statute makes a ward’s “right to marry” contingent on court approval if the right to contract has been removed. In other words, the ward’s ability to enter into a valid marriage depends on court approval. Thus, if the right to marry is not approved, any attempt by the ward to marry would result in an invalid marriage. If court approval is never obtained, the invalidity of the marriage cannot be cured, and the marriage can be given no effect. This is inconsistent with the traditional concept of a “voidable” marriage, which is “good for every purpose” until it is challenged, and “good ab initio” if it is not challenged within the parties’ lifetimes. Kuehmsted, 138 So. at 777.

In sum, the critical language of section 744.3215(2)(a)—“the right to marry is subject to court approval”—should be given its plain meaning: the ward’s right to marry is contingent on court approval when the right to contract is removed. However, the statute does not use the term “void” or expressly require prior court approval. Further, the word “subject” is not defined as a condition precedent. Therefore, to interpret the statute as requiring court approval prior to the marriage ceremony would impermissibly “extend, modify, or limit, its express terms or its reasonable and obvious implications.” McLaughlin, 721 So.2d at 1172 (quoting Holly, 450 So.2d at 219). Moreover, the plain language is inconsistent with a “voidable” marriage.

Accordingly, we conclude that the Legislature did not intend for the concept of a “void” or “voidable” marriage to apply to the disputed provision. We hold that section 744.3215(2)(a) does not preclude the possibility of ratification of a marriage if the court subsequently gives its approval, but an unapproved marriage is invalid and can be given legal effect only if court approval is obtained.

Legislative History

The legislative history of the Florida Guardianship Laws further supports our conclusion. It reflects the Legislature’s objective of protecting incapacitated persons from abuse and exploitation on the one hand, and upholding their rights, dignity, and quality of life on the other. Requiring court approval before a ward may into enter a valid marriage, while also allowing for subsequent ratification, furthers the Legislature’s stated goals.

Prior to 1989, guardianship laws in Florida took an “all-or-nothing” approach that assumed “a person is either competent and capable of exercising all civil rights, or incompetent and thus incapable of making any significant personal decision.” Ch. 89-96, Preamble, at 176, Laws of Fla. However, the Legislature found this approach to be “intrusive and demeaning to a person whose loss of capacity is only partial.” Id. It recognized that “an untold number of individuals not in full control of their capacities [were] being taken advantage of, both financially and by having their personal rights stripped by the court without adequate supervision.” Id. The Legislature even found that incapacitated persons under the then-existing guardianship laws “typically retainfed] fewer rights than are retained by convicted felons, since most guardianship orders remove from the individual basic rights such as the rights to vote, own property, marry, consent to medical treatment, and contract.” Id. As a result, the Legislature undertook a ‘‘comprehensive set of reforms to adequately protect the rights and property” of incapacitated persons. Id, at 177. Among other changes, the option of limited guardian-ships was created, which the Legislature stated would “minimize the invasion of a ward’s privacy and fundamental rights and ... preserve the ward’s dignity and self respect.” Id at 176. The Legislature also specified that courts “should take a more proactive and affirmative role in guardianship matters, rather than wait ... until an abuse of the system is brought to its attention.” Id at 177.

Protecting the rights of incapacitated persons was likewise considered when section 744.3215(2)(a) was amended in 2006 to include the now-disputed provision. The staff analysis to that bill stated that the amendment “reinforc[es] the significance of the right to marry.” HB 457 (2006) Staff Analysis (March 26, 2006). Further, the bill incorporated the recommendations of several groups, including the Guardianship Task Force. Id. In its report, the Task Force stated it “focused on the premise that the court must consider the least restrictive alternatives to ensure each individual’s dignity.” Guardianship Task Force, Final Report at 8 (2004). The Task Force also “spent a significant amount of time debating the concept of the right to marry being a contractual right,” and as such, whether the right to marry should be removed if the right to contract is removed. Id. However, the Task Force ultimately recommended that the right to marry should not be automatically removed when the right to contract is removed, especially considering that the right to marry is a fundamental right. Id. Instead, it recommended that the right to marry be “subject to court approval so that the judge can determine if the ward understands the marriage contract and that the ward is not a likely victim of abuse or financial exploitation.” Id.

The legislative intent, as declared in section 744,1012, Florida Statutes (2016), further illustrates the goal of protecting incapacitated persons from exploitation while upholding their ■ rights. Section 744.1012 provides:

(1) Adjudicating a person totally incapacitated and in need of a guardian deprives such person of all her or his civil and legal rights and that such deprivation may be unnecessary.
(2) It is desirable to make available the least restrictive form of guardianship to assist persons who are only partially incapable of caring for their needs and that alternatives to guardianship and less restrictive means of assistance, including, but not limited to, guardian advocates, be explored before a plenary guardian is appointed.
(3) By recognizing that every individual has unique needs and differing abilities, it is the purpose of this act to promote the public welfare- by establishing a system that permits incapacitated persons to participate as fully as. possible in all decisions affecting them; that assists such persons in meeting the essential requirements for their physical health and safety, in protecting their rights, in managing their financial resources, and in developing or regaining their abilities to the maximum extent possible; and that accomplishes these objectives through providing, in each case, the form of assistance that least interferes with the legal capacity of a person to act in her or his own behalf. This act shall be liberally construed to accomplish this purpose.

(Emphasis added.) This expression of legislative intent, combined with the legislative history of the Florida Guardianship Laws, demonstrates the Legislature’s consistent efforts to uphold incapacitated persons’ rights to the greatest extent possible. Therefore, the Legislature likely did not intend for section 744.3215(2)(a) to render a ward’s unapproved marriage absolutely void, particularly in cases such as this, where the ward was not deemed incapacitated with respect to his right to marry, the parties were engaged prior to his incapacitation, the guardian was asked twice to obtain the court’s approval, and there is no evidence whatsoever of abuse or financial exploitation.

Similarly, to interpret section 744.3215(2)(a) as rendering a ward’s unapproved marriage merely voidable would undermine the Legislature’s efforts to safeguard a ward’s inalienable right “to be protected against abuse, neglect, and exploitation.” § 744.3215(l)(d), Fla. Stat. As previously discussed, if a ward whose right to contract has been removed enters into a marriage without obtaining court approval, and such a union is considered voidable, the effect is that the marriage is essentially valid “for every purpose” unless and until it is challenged in a direct proceeding during the ward’s lifetime. This affords the ward and the ward’s estate little, if any, protection from financial exploitation if the ward passes away before the validity of the marriage can be challenged.

The interpretation of section 744.3214(2)(a) the Legislature likely intended—that, absent court approval, a marriage entered into by a ward whose right to contract has been removed is invalid, but ratifiable—advances both objectives of the Florida Guardianship Laws. It protects the ward and the ward’s estate by allowing a court to assess the risk of abuse and exploitation before the alleged spouse acquires any rights as a result of the marriage. It also upholds the ward’s fundamental right to marry to the greatest extent possible by allowing for the possibility of ratification.

Ratification in This Case

Glenda argues that the guardianship court did, in fact, ratify her marriage to Alan in a December 2012 hearing. When the collateral issue of Alan’s marriage to Glenda arose, the couple’s marriage certificate was entered into evidence without objection, although Alan’s guardian, Cram-er, stated that he did not think they were actually married because court approval had not been obtained.. The guardianship court stated:

[M]y concern for you, Mr. Cramer, because I’m going to look to you to make proper decisions, is that Mr. Smith is married, apparently to Ms. Martinez, I have a certificate of marriage, that right was not removed, and her testimony I struck, but' the essence of her testimony that was important to me had to do with the fact that she is able to provide companionship and companion care, those two things. Now for someone like Mr. Smith, it’s great that he has good doctors, good nurses, and people like that from a medical point of view, but that is not [a] substitute for the type of personal ability that a spouse has to provide companion care to their spouse. Like it or not ... she is his spouse, she certainly is hands-on and it is often when a spouse is in an impaired condition like that one of the real benefits, even to someone in Mr. Smith’s condition, is to still see his spouse, be able to know she’s there and benefit from that, so while the ETG [emergency temporary guardianship] will be plenary in nature .,, you must take "into consideration what I just said about Ms. Martinez being able to have close and continuing contact ... with her husband, because I think Mr. Smith still looks out to her.

(Emphasis added.) Glenda ' argues that these statements by the guardianship court were sufficient to ratify the marriage. We disagree.

Although the invalid marriage-between Glenda and Alan is capable of ratification under section 744.3215(2)(a), it is unlikely that the Legislature intended for “court approval” to consist merely of acknowledging the existence of a marriage certificate and commenting on the alleged marriage, without issuing an order- ratifying the marriage or conducting .-a hearing to verify that the ward understands the, marriage contract, desires the marriage, and that the relationship is not exploitative. Therefore, we conclude the guardianship court’s statements here were not sufficient to approve the marriage. However,. the parties are not foreclosed from seeking court approval based on our decision today.

CONCLUSION

Based upon the foregoing, we answer the certified question by holding that a ward’s failure to obtain court approval pri- or to exercising the right to marry does not render the marriage void or voidable. Instead, we conclude that under section 744.3215(2)(a), court approval is required before a ward whose right to contract has been removed may enter a valid marriage. Any marriage entered into without court approval is invalid. -However, the statute does not prevent the ward or the intended spouse from seeking court approval after marrying in order to ratify the marriage. Accordingly, we quash the decision of the Fourth District and remand to the district court for proceedings consistent with this opinion.

It is so ordered.

PARIENTE and QUINCE, JJ., concur.

LAWSON, J;, concurs specially with an opinion..

POLSTON, J., dissents with an opinion, in which LEWIS and CANADY, JJ., concur.

LAWSON, J.,

specially concurring.

I fully agree with- the majority opinion and write to address the dissent. Obviously, this .is a difficult case. Both the dissent and the- majority strive to apply the plain language of this statute, but-read the statute differently. I believe the majority’s reading to be correct because it gives effect to all words in the statute, without adding to them. While the dissent’s reading gives effect to the “right to marry” language, it does so at the expense of the “subject to” language. The majority gives effect to both. In other words, the majority more faithfully construes the text “reasonably, to contain all that it fairly means.” Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law, 23 (Amy Gutmann ed., 1997) (emphasis added).

Saying that something “is subject to court approval” suggests authorization for ratification and does not demand prior approval, as the dissent would require. In essence, the dissent infers from the “right to marry” language that the statute really means “subject to” prior “court approval.” Before adding a word to a statute that the Legislature did not, I would resort to the following secondary rule of construction: “Where reasonable differences arise as to the meaning or application of a statute, the legislative intent must be the polestar of judicial construction.” Lowry v. Parole & Prob. Comm’n, 473 So.2d 1248, 1249 (Fla. 1985) (citing Tampa-Hillsborough Cty. Expressway Auth. v. K.E. Morris Alignment Serv., Inc., 444 So.2d 926 (Fla. 1983)).

This statute is clearly intended to protect the ward from exploitation while preserving, as best as possible, the ward’s fundamental ■ right to marry. These twin goals cannot be met using our common law construct under which a marriage is classified, if not fully valid, as either voidable or void.

This case illustrates why the Legislature’s intent would be thwarted by reading the statute to mean that a marriage is void if entered without prior approval. Here, the ward’s committed supportive relationship pre-dated his injury by a number of years—and, the couple was engaged to be married at the time of the injury. The guardian, for reasons not clear on this record, refused to petition the court for approval of the marriage. It also appears from this record that both before and after the marriage, Glenda Martinez Smith supported and cared for Alan Smith, enhancing his quality of life consistent with the ideals of marriage. In short, it appears from this limited record that the relationship was in no way exploitative, was in the ward’s best interest, and was the ward’s choice. If these inferences are proven at a hearing, it would be contrary to the purpose of this statute to treat the marriage as void, with no opportunity for ratification.

It is also easy to see why the Legislature’s intent would be thwarted by reading the statute to mean that a marriage entered by a ward without prior court approval is voidable. A “voidable” marriage, at common law, cannot be challenged after the death of a spouse. Kuehmsted v. Turnwall, 103 Fla. 1180, 138 So. 775, 777 (1932) (citing 18 R. C. L. 447). If the Legislature had chosen to make a ward’s marriage voidable, a ward could be coerced or manipulated into an exploitative marriage, potentially leaving the ward’s children or other relatives with no recourse if they do not discover the marriage until after the ward’s death.

Because the Legislature’s intent would have been thwarted by employing either common law category (of void or voidable marriages), I find it unsurprising that the Legislature chose to avoid them. I do find it perplexing, however, that the dissent seems to criticize the majority for “avoid[ing] ... the categories of void and voidable marriages” when it was the Legislature that chose not to use them. Dissenting op. at 753. I also take issue with the dissent’s critique of the majority opinion as “strictly construing the term ‘subject’ to mean less than it fairly means in this context but leniently construing the term ‘the right to marry to gloss over the difference in meaning with the term ‘marriage.’ ” Dissenting op. at 753-54. Contrary to this assertion, the majority properly recognizes that by using the phrase “right to marry” the Legislature has foreclosed viewing the marriage as voidable because the marriage itself cannot be validated until the “right to marry” has been approved. Majority op. at 748-49. Then, the majority reasonably reads “subject to” as allowing for approval before or after the marriage. Majority op. at 748^9. That is not a “strict construction,” as the dissent contends, but is a reasonable reading—and the only reading consistent with the clear intent of the statute. It is the dissent’s construction—with its addition of a prior approval requirement—that is an unreasonable narrowing of the plain language of the statute which would produce a result inconsistent with the Legislature’s intent.

POLSTON, J.,

dissenting.

Under the plain and reasonable meaning of section 744.3215(2)(a), Florida Statutes, an incapacitated person, who has had the right to contract removed, must obtain court approval prior to exercising the right to marry, without which the marriage is void.

Specifically, section 744.3215(2)(a) provides the following:

(2) Rights that may be removed from a person by an order determining incapacity but not delegated to a guardian include the right:
(a) To marry. If the right to enter into a contract has been removed, the right to marry is subject to court approval.

(Emphasis added.) Consistent with section 744.3215(2)(a), the trial court issued the following order when removing Smith’s rights to contract and manage property:

The following rights of the Ward are delegated to the Guardian appointed by this Order:
[X] to contract,
[X] to manage property of the Ward Note: if the right of the Ward to contract has been delegated to the Guardian but the right to marry is retained, then the right to marry is subject to Court approval.

(Emphasis added.)

Pursuant to the plain meaning of “the right to marry is subject to court approval,” the ward’s ability to exercise his right to marry and enter into a marriage contract is contingent upon court approval. As the Fourth District noted, the statute’s text subjects “the right to marry” to court approval, not the marriage itself, reasonably meaning that court approval must be obtained before the right to enter into the contract of marriage is exercised. See Smith v. Smith, 199 So.3d 911, 912 (Fla. 4th DCA 2016) (explaining that the statute “does not state that ‘a marriage’ is subject to court approval, but rather, it states that ‘the right to marry’ is subject to court approval. Therefore, if a person deemed incapacitated has had his or her right to contract removed, he or she has no right to marry unless the court gives its approval.”). Stated otherwise, although the incapacitated person retains the right to marry under the statute when the right to contract has been removed, the ability to validly and effectively exercise that right is dependent upon court approval. If court approval has not been obtained, the incapacitated person may not validly exercise the right, and any attempt to do so results in a void marriage. Cf. Jasser v. Saadeh, 97 So.3d 241, 249 (Fla. 4th DCA 2012) (“[A]t the time of the execution of the trust, the right to contract had been removed from Saadeh. ... Thus, because Saadeh had no legal right to execute the trust, the trust was invalid and void.”); In re Guardianship of Bockmuller, 602 So.2d 608, 609 (Fla. 2d DCA 1992) (denying attorneys’ fees and holding that, because the ward’s right to contract had been removed, the ward “had no power to contract with [counsel] to represent her” even though section 744.3215, Florida Statutes, gives incapacitated persons the right to counsel).

The majority avoids this plain meaning of the statute (as well as the categories of void and voidable marriages) by strictly construing the term “subject” to mean less than it fairly means in this context but leniently construing the term “the right to marry” to gloss over the difference • in meaning with the term “marriage.” See majority op. at 747 (“In the context of section 744.3215(2)(a), ‘the right to marry is subject to court approval’ means that the ward’s right to marry is contingent on court approval, though that approval may come later in time, such, as after the marriage ceremony. Although the validity of the marriage itself depends on court approval, nowhere in the statute does it provide that court approval must be obtained prior to marrying.”). The majority recites multiple dictionary definitions of “subject,” but complains that “the word ‘subject’ is not defined as a condition precedent,” Id. at 748. The majority also faults the Legislature for failing to employ the terms “void,” “voidable,”, “first,” “prior,” “after,” “prohibited,” or “may not.” Id. at 747-48. Of course, the Legislature also failed to employ the terms “ratification” or “invalid, but ratifiable,” which is what the majority says section 744.3215(2)(a) provides for. Id. at 750.

Importantly, however, construing the plain meaning of a statute is not a magic words test. Instead, “[wjords of common usage, when used in a statute, should be construed in the plain and ordinary sense, because it must be assumed that the Legislature knows the plain and ordinary meaning of words used in statutes and that it intended the plain and obvious meaning of the words used.” Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 945 So.2d 1216, 1225 (Fla. 2006). As Justice Scalia explained, “[a] text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.” Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law, 23 (Amy Gutmann ed., 1997).

In this case, the text “the right to marry is subject to court approval” fairly and reasonably means that the ward must obtain court approval before exercising the right to marry. The fact that dictionary definitions of the term “subject” do not include a specification of being a condition precedent does not change the common understanding that the approval inust take place beforehand. For example, if I tell a friend that they have “the right to borrow my car subject to my approval,” I am telling that friend that' he or she may borrow my car but that he or she must ask for and obtain my permission before doing so. If, instead, my friend simply drives off with my car before obtaining my approval, my friend has committed a crime and stolen my vehicle. It would be commonly understood and plainly obvious that the term “subject to my approval” means that the approval to borrow my car must be obtained beforehand. The same is true with the text at issue in section 744.32Í5(2)(a). And construing the statute to mean all that it fairly and plainly contains is not “extending], modify[ing], or limiting] its express terms or its reasonable and obvious implications.” Majority op. at 748 (quoting McLaughlin v. State, 721 So.2d 1170, 1172 (Fla. 1998) (quoting Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984))).

. To summarize, the plain meaning of section 744.3215(2)(a) requires an incapacitated person, who has had the right to contract removed, to obtain court approval before exercising the right to marry. Without such statutorily required court approval beforehand, the marriage is void. Accordingly, I would approve the Fourth District’s decision, and I respectfully dissent.

LEWIS and CANADY, JJ., .concur.

      . Before a right can be removed from an incapacitated person, section 744.33l(3)(a) requires the guardianship court to appoint a three-member examining committee, of which one member must be a psychiatrist or other physician. Each of the remaining' members must be a physician, nurse, “or other person who by knowledge, skill, experience, training, or education may, in the court’s discretion, advise the court in the form of an expert opinion." Id. Each committee member is required to conduct a comprehensive examination of the person to "determine the alleged incapacitated person's ability to exercise those rights specified in [section] 744.3215,” and each member must submit a written report with his or her findings. § 744.331(3)(e), Fla. Stat. An adjudicatory hearing must then be held, and "the partial or total incapacity of the person must be established by clear and convincing evidence.” § 744.331(5)(c), Fla. Stat.

      . This provision tracks the language in section 744.3215(2)(a).

      . A preneed guardian is someone who has been designated to serve as a person's guardian in the event that person is declared incapacitated. See § 744.3045(1), Fla. Stat. (2016).

      . The hearing was related to a petition to move Alan to another assisted living facility.

      . Bigamous and incestuous marriages are also considered void. § 741.21, Fla. Stat. (2016); Jones v. Jones, 119 Fla. 824, 161 So. 836, 839 (1935) (recognizing bigamous marriages as void).

      . In 2003, the Guardianship Task Force was created within the Department of Elder Affairs in order “to examine guardianship and incapacity and make recommendations to the Governor and the Legislature for the improvement of guardianship 'and incapacity practice.” Ch. 2003-262, § 4(1), at 2712, Laws of Fla.

      . The presiding judge was subsequently disqualified for remarks made during this hearing regarding Glenda. Martinez v. Cramer, 111 So.3d 206, 207 (Fla. 4th DCA 2013).


author: LAWSON, J. PARIENTE, J.,

text:
    Aramis Donell AYALA, etc., Petitioner, v. Rick SCOTT, Governor, Respondent.
    No. SC17-653
    Supreme Court of Florida.
    [August 31, 2017]
    Marcos E. Hasbun and Mamie V. Wise of Zuckerman Spaeder, LLP, Tampa, Florida; and Roy L. Austin, Jr., and Amy E. Richardson of Harris, Wiltshire & Grannis, LLP, Washington, District of Columbia, for Petitioner
    Pamela Jo Bondi, Attorney General, Amit Agarwal, Solicitor General, Jordan E. Pratt, and Jonathan L. Williams, Deputy Solicitors General, Office, of the Attorney General, Tallahassee, Florida; and Daniel E. Nordby, General Counsel, and John P. Heekin, Assistant General Counsel, Executive Office of the Governor, Tallahassee, Florida, for Respondent
    Shayan Elahi of Shayan Elahi, P.A., Winter Park, Florida, for Amici Curiae The Dream Defenders, Florida Immigrant Coalition, Let Your Voice Be Heard, Inc., Florida State Conference of the National Association for the Advancement of Colored People, The New Florida Majority, SEIU Florida State Council, Color of Change, and Advancement Project
    Adam S. Tanenbaum, General Counsel and J. Michael Maida, Deputy General Counsel, Florida House of Representatives, Tallahassee, Florida, for Amicus Curiae The Florida House of Representatives
    Arthur I. Jacobs, Richard J. Scholz, and Douglas A. Wyler of Jacobs, Scholz & Associates, LLC, Fernandina Beach, Florida, for Amicus Curiae Florida Prosecuting Attorneys Association
    Mark Herron and Robert J. Telfer III of Messer Caparello, PA., Tallahassee, Florida, for Amici Curiae Senator Oscar Braynon, Senator Jeff Clemens, Senator Perry Thurston, Senator Gary Farmer, Representative Janet Cruz and Representative Sean Shaw
    Daniel J. Gerber of Rumberger, Kirk & Caldwell, Orlando, Florida, for Amici Curiae Family Members of Victims
    Sharon L. Kegerreis of Berger Singer-man, Miami, Florida; Donald B. Verrilli, Jr., Chad I. Golder, and Sarah G. Boyce of Munger, Tolies & Olson, LLP, Washington, District of Columbia; and Mark B. Helm, and John F. Muller of Munger, Tolies & Olson, LLP, Los Angeles, California, for Amici Curiae Former Judges, Current and Former Prosecutors, and Legal Community Leaders
    Nancy G. Abudu and Jacqueline Nicole Azis of ACLU Foundation of Florida, Inc., Miami, Florida; and Brian W. Stull, Senior Staff Attorney of American Civil Liberties Union Foundation, Durham, North Carolina, for Amici Curiae American Civil Liberties Union Capital Punishment Project, the American Civil Liberties Union of Florida, Floridians for Alternatives to the Death Penalty, the Sentencing Project, and the NAACP Legal Defense & Educational Fund, Inc.
    Seth Miller, President of Innocence Network, Innocence Project of Florida, Tallahassee, Florida; Norman Adam Tebrugge of Tebrugge Legal, Sarasota, Florida, and James C. Dugan of Willkie, Farr & Gallagher, LLP, New York, New York, for Ami-ci Curiae The Innocent Network and Witness to Innocence
    Ashley M. Litwin of Seitles & Litwin, P.A., Miami, Florida, for Amicus Curiae National Association of Criminal Defense Lawyers
    Sonya Rudenstine, Gainesville, Florida, for Amici Curiae Victims’ Service Providers and Homicide Victims’ Family Members
   LAWSON, J.

Aramis Donell Ayala, State Attorney for Florida’s Ninth Judicial Circuit, petitions this Court for a writ of quo warranto, challenging Governor Rick Scott’s authority under section 27.14(1), Florida Statutes (2016), to reassign the prosecution of death-penalty eligible cases in the Ninth Circuit to Brad King, State Attorney for Florida’s Fifth Judicial Circuit. We have jurisdiction. See article V, § 3(b)(8), Fla. Const,- For the reasons below, we deny Ayala’s petition.

BACKGROUND

At a March 15, 2017, press conference, Ayala announced that she “will not be seeking [the] death penalty in the cases handled in [her] office.” Several times during the same press conference, Ayala reiterated her intent to implement a blanket “policy” of not seeking the death penalty in any eligible case because, in her view, pursuing death sentences “is not in the best interest of th[e] community or in the best interest of justice,” even where an individual case “absolutely deserve[s] [the] death penalty.”

In response to Ayala’s announcement, Governor Rick Scott issued a series of executive orders reassigning the prosecution of death-penalty eligible cases pending in the Ninth Circuit to King. In support of these orders, the Governor cited his duty as Florida’s chief executive officer under article IV, section 1(a), of the Florida Constitution to “take care that the laws be faithfully executed” and his authority under section 27.14(1), Florida Statutes, to assign state attorneys to other circuits “if, for any ... good and sufficient reason, the Governor determines that the ends of justice would be best served.” The reassignment orders do not direct King to pursue the death penalty in any particular case, and in a statement filed in this Court, King has sworn that the Governor made no attempt to influence his decision as to whether the circumstances of any'of the reassigned cases warrant pursuing the death penalty.

After unsuccessfully seeking a stay of the reassignment orders in the Ninth Circuit, Ayala filed this petition for a writ of quo warranto challenging the Governor’s authority to reassign the cases at issue to King. The record reflects that Ayala and her office have abided by the lower courts’ denial of her motion and fully cooperated with King.

ANALYSIS

Ayala argues that the Governor exceeded his authority under section 27.14 by reassigning death-penalty eligible cases in the Ninth Circuit to King over her objection because article V, section 17, of the Florida Constitution makes Ayala “the prosecuting officer of all trial courts in [the Ninth] [C]ircuit.” While quo warranto is the proper vehicle to challenge the Governor’s authority to reassign these cases to King, see Fla. House of Representatives v. Crist, 999 So.2d 601, 607 (Fla. 2008), Ayala is not entitled to relief because the Governor did not exceed his authority on the facts of this case.

As Florida’s chief executive officer, the Governor is vested with the “supreme executive power” and is charged with the duty to “take care that the laws be faithfully executed.” Art. IV, .§ 1(a), Fla. Const. Florida law facilitates the Governor’s discharge of this duty, among other ways, through state attorney assignments. Specifically, section 27.14(1), the constitutionality of which Ayala concedes, provides:

If any state attorney is disqualified to represent the state in any investigation, case, or mattei pending in the courts of his or her circuit or if, for any other good and sufficient reason, the Governor determines that the ends of justice would be best served, the Governor may, by executive order filed with the Department of State, either order an exchange of circuits or of courts between such state attorney and any other state attorney or order an assignment of any state attorney to discharge the duties of the state attorney with respect to one or more specified investigations, cases, or matters, specified in general in the executive order of the Governor. Any exchange or assignment of any state attorney to a particular circuit shall expire 12 months after the date of issuance, unless an extension is approved by order of the Supreme Court upon application of the Governor showing good and sufficient cause to extend such exchange or assignment.

§ 27.14(1), Fla. Stat. (2016) (emphasis added).

This Court has previously recognized that the Governor has broad authority to assign state attorneys to other circuits pursuant to .section 27.14:

It is the duty of the Governor under Fla. Const. F.S.A., art. IV, § 1(a) in the exercise of his executive power to “take care that the laws be faithfully executed.” The exercise of this power and the performance of this duty áre clearly essential to the orderly conduct of government and the execution of the laws of this State. An executive order assigning a state attorney is exclusively within the orbit of authority of the Chief Executive when exercised within the bounds of the statute. See Kirk v. Baker, 224 So.2d 311 (Fla. 1969). The Governor is given broad authority to fulfill his duty in taking “care that the laws be faithfully executed,” and he should be required to do no more than make a general recitation as to his reasons for assigning a state attorney to another circuit.

Finch v. Fitzpatrick, 254 So.2d 203, 204-05 (Fla. 1971); see also Austin v. State ex rel. Christian, 310 So.2d 289, 293 (Fla. 1975) (“The statutes authorizing assignments of state attorneys should be broadly and liberally construed so as to complement and implement the duty of the Governor under the Constitution’ of the State of Florida to ‘take care that the Taws’be faithfully executed.’” (quoting art. IV, § 1(a), Fla. Const.)).

Accordingly, this Court reviews challenges to the Governor’s exercise of his “broad discretion in determining ‘good and sufficient reason’ for assigning a state attorney to another circuit,” Finch, 254 So.2d at 205, similar to the way in which it reviews exercises of discretion by the lower courts. Compare Johns v. State, 144 Fla. 256, 197 So. 791, 796 (1940) (“If the Governor should abuse [the assignment] power, by arbitrarily and without any reason whatsoever [for] making such an assignment, it might be that his action could be inquired into by writ of quo warranto ....”); with McFadden v. State, 177 So.3d 562, 567 (Fla. 2015) (“Discretion is abused only when the trial court’s decision is ‘arbitrary, fanciful, or unreasonable.’ ” (quoting Gonzalez v. State, 990 So.2d 1017, 1033 (Fla. 2008))).

Applying this well-established standard of review to the facts of this case, the executive orders reassigning the death-penalty eligible cases in the Ninth Circuit to King fall well “within the bounds” of the Governor’s “broad authority.” Finch, 254 So.2d at 204-05. Far from being unreasoned or arbitrary, as required by section 27,14(1), the reassignments are predicated upon “good and sufficient reason,” namely Ayala’s blanket refusal to pursue the death penalty in any case despite Florida law establishing the death penalty as an appropriate sentence under certain circumstances. See generally § 921.141, Fla. Stat. (2017). ’

Notwithstanding the Governor’s compliance with all of the requirements of section 27.14(1), however, Ayala and her amici urge this Court to invalidate the reassignment orders by viewing this case as a power struggle over prosecutorial discretion. We decline the invitation because by effectively banning the death penalty in the Ninth Circuit—as opposed to making case-specific determinations as to whether the facts of each death-penalty eligible case justify seeking the death penalty— Áyala has exercised no discretion at all. As New York’s high court cogently explained, “adopting a ‘blanket policy’” against the imposition of the death penalty is “in effect refusing to exercise discretion!’ and tantamount to a “functional[ ] veto” of state law authorizing prosecutors to pursue the death penalty in appropriate cases. Johnson v. Pataki, 91 N.Y.2d 214, 668 N.Y.S.2d 978, 691 N.E.2d 1002, 1007 (1997).

Although Johnson applied New York law, the ■ standards to which this Court holds its own judicial officers establish that Ayala’s actions have the same impact under Florida law. For example, our trial judges may not “refuse to exer-cise discretion’' or “rely on an-inflexible rule for a decision that the law places in the judge’s discretion,” Barrow v. State, 27 So.3d 211, 218 (Fla. 4th DCA 2010), approved, 91 So.3d 826 (Fla. 2012). Instead, exercising discretion demands an individualized determination “exercised according to the exigency of the case, upon a consideration of the attending circumstances.” Barber v. State, 5 Fla. 199, 206 (Fla. 1853) (Thompson, J., concurring).

Thus, under Florida law, Ayala’s blanket refusal to seek the death penalty in any eligible case, including a case that “absolutely deserve[s] [the] death penalty” does not reflect an exercise of prosecutorial discretion; it embodies, at best, a misunderstanding of Florida law. Cf. Doe v. State, 499 So.2d 13, 14 (Fla. 3d DCA 1986) (holding “the trial court failed to exercise its independent sentencing discretion”- in light of its erroneous view of the law); see also Taylor v. State, 49 Fla. 69,38 So. 380, 383 (1905) (recognizing that “a failure of the state’s interests” occurs where “the regular state attorney is unwilling or refuses to act”).

Moreover, while Ayala’s blanket prohibition against the death penalty provided the Governor with “good and sufficient reason” to reassign the cases at issue to- King, also important to our holding.is that the Governor did not attempt to decide which cases are deserving of the death penalty. The Governor’s orders do not direct King to seek the death penalty in any of the reassigned cases, and King has sworn that the Governor has not attempted to interfere with his determination as to whether to pursue the death penalty in any case. Rather, consistent with the Governor’s constitutional duty, effectuated pursuant to his statutory assignment authority, the executive orders ensure the faithful execution of Florida law by guaranteeing that the death penalty—while never mandatory—remains an option in the death-penalty eligible cases in the Ninth Circuit, but leaving it up to King, as the assigned state attorney, to determine whether to seek the death penalty on a case-by-case basis.

On these facts, the Governor has not abused his broad discretion in reassigning the cases at issue to Bang.

CONCLUSION

The executive orders reassigning death-penalty eligible cases in the Ninth Circuit to King do not exceed the Governor’s authority on the facts of this case. Therefore, we deny Ayala’s petition.

It is so ordered.

LABARGA, C.J., and CANADY, and POLSTON, JJ., concur.

LEWIS, J., concurs in result.

PARIENTE, J., dissents with an opinion, in which QUINCE, J., concurs.

PARIENTE, J.,

dissenting.

This case is about the independence of duly elected State Attorneys to make lawful decisions within their respective jurisdictions as to sentencing and allocation of their offices’ resources, free from interference by a Governor who disagrees with their decisions. The issue before this Court is whether a duly elected State Attorney’s choice to forgo seeking one potential penalty in a class of criminal cases, in favor of seeking another penalty authorized by statute, constitutes “good and sufficient reason” for the Governor to exercise his removal power under section 27.14(1), Florida Statutes (2017). I dissent because the State Attorney’s decision to prosecute first-degree murder cases but not seek the death penalty at this time does not provide a basis for the Governor to remove State Attorney Aramis Ayala.

Article V, section 17, of the Florida Constitution, which was adopted in 1972, provides for an elected state attorney “[i]n each judicial circuit,” who “shall be the prosecuting officer of all trial courts in that circuit and shall perform other duties prescribed by general law.” Art. V, § 17, Fla. Const. As to the role of elected State Attorneys, this Court made clear in Austin v. State ex rel. Christian, 310 So.2d 289 (Fla. 1975), that “the office of State Attorney is a constitutional office,” stating:

State Attorneys are constitutional officers, charged with the responsibility of prosecutions in the circuit in which he [or she] is elected and with the performance of such other duties as are prescribed by general law. ... Being an elected official he [or she] is responsible to the electorate of [the] circuit, this being the traditional method in a democracy by which the citizenry may be assured that vast power will not be abused. ... The Legislature, in its wisdom, has empowered the Governor to exchange and assign State Attorneys between judicial circuits within the confines of its enactments.

Id. at 293-94 (emphasis added). The Court also established that “[a] statute enacted by the Legislature may not constrict a right granted under the ultimate authority of the Constitution.” Id. at 293.

Specifically at issue in this case is the decision of Aramis Ayala, the duly elected State Attorney for the Ninth Judicial Circuit, to exercise her prosecutorial discretion not to seek the death penalty in cases in which she sought and obtained indictments for first-degree murder. It is well established in our case law that “the decision to seek the death penalty,” as allowed by statute, “is within the prosecutor’s discretion.” Freeman v. State, 858 So.2d 319, 322 (Fla. 2003). Nowhere in the Florida Statutes does the Legislature mandate that a prosecutor seek the death penalty in capital prosecutions. See § 921.141(1), Fla. Stat. (2017); § 775.082(l)(a), Fla. Stat. (2017). Florida’s capital sentencing scheme affords a duly elected State Attorney the discretion to pursue either of two possible sentences “[u]pon conviction or adjudication of guilt ... of a capital felony”: “death or life imprisonment” without the possibility of parole. § 921.141(1). Section 775.082 states that “a person who has been convicted of a capital felony shall be punished by death if the proceeding held to determine sentence according to the procedure set forth in [section] 921.141 results in a determination that such person shall be punished by death, otherwise such person shall be punished by life imprisonment” and shall be ineligible for parole. § 775.082(l)(a). Either way, upon a conviction of first-degree murder, Florida law requires a minimum sentence of life imprisonment without parole.

Likewise, Florida’s most recently amended capital sentencing scheme further affirms that it is the prosecutor’s decision whether to seek death in each capital prosecution, stating: “If the prosecutor intends to seek the death penalty, the prosecutor must give notice to the defendant and file the notice with the court within 45 days after arraignment. ... The court may allow the prosecutor to amend the notice upon a showing of good cause.” Ch. 2017-1, Laws of Fla., § 4. Although the amicus brief of the House of Representatives asserts that the State Attorney is obligated to seek the death penalty in each prosecution where the State can prove at least one aggravating factor, the Governor disagrees with that position, acknowledging that the decision to seek death is a matter of prosecutorial discretion.

In his executive order removing State Attorney Ayala, Governor Scott referenced article IV, section 1(a), of the Florida Constitution, and section 27.14, Florida Statutes (2017). See, e.g„ Exec. Order No. 17-66 (Fla. Mar. 16, 2017). Article IV, section 1(a), of the Florida Constitution, states in pertinent part: “The governor shall take care that the laws be faithfully executed, commission all officers of the state and counties, and transact all necessary business with the officers of government.” Art. IV, § 1(a), Fla. Const, (emphasis added). However, as Amici Curiae Former Judges argue, the fact that the Governor is charged to faithfully execute the laws does not supplant the constitutional authority of the independently elected State Attorney to prosecute crimes and to exercise his or her discretion in deciding what punishment to seek within the confines of the applicable laws. See Amici Curiae Former Judges Br. at 13 (The Governor’s constitutional duty to “ ‘take care that the laws be faithfully executed’ ... cannot empower the governor, contrary to the Florida Constitution’s express provision that state attorneys ‘shall’ be ‘the’ prosecutor within their circuits, to usurp prosecutorial duties.” (quoting art. IV, § 1(a), Fla. Const.)). Indeed, every day State Attorneys are tasked with making tough choices as to which crimes to prosecute and which penalties to pursue in consideration of their offices’ limited resources. Such decisions include whether to accept a plea to a lesser degree of the charged offense, whether to prosecute certain classes of crimes, and, of course, whether to seek the death penalty in capital prosecutions.

The Governor’s only constitutional authority to remove State Attorneys comes from article IV, section 7, of the Florida Constitution. That provision provides that “the governor may suspend from office any state officer not subject to impeachment ... for malfeasance, misfeasance, neglect of duty, drunkenness, incompetence, permanent inability to perform official duties, or commission of a felony.” Governor Scott has not claimed that any of these grounds for exercising his constitutional removal authority applies in this case. Therefore, because Governor Scott does not have the constitutional authority to remove Ayala from her position under article IV, section 7, the Governor relies on section 27.14, Florida Statutes.

When State Attorney Ayala announced that her office would not seek the death penalty in capital prosecutions, she acted well within the bounds of Florida law Regarding the death penalty. She did 'not announce a refusal to prosecute the guilt of defendants charged with first-degree murder. Rather, State Attorney Ayala announced that she would not' seek a sentence that produces years of appeals and endless constitutional challenges and implicates decades of significant jurisprudential developments, many of which have emanated over the years from .the United States Supreme Court. Despite assertions to the contrary, State Attorney Ayala did not make her decision based on personal opposition to the death penalty or “emotion.”

State Attorney Ayala’s decision was well within the scheme created by the. Legislature and within the scope of decisions-State Attorneys make every day on how to allocate their offices’ limited resources. Because State Attorney- Ayala’s decision was within the bounds of the law and her discretion, Governor Scott did not have “good and sufficient reason” to remove her from these cases.

■For these reasons, I would grant the petition for,a writ of quo warranto and allow State Attorney Ayala to proceed -in her constitutional role as the elected State Attorney for-the Ninth Judicial Circuit. The Governor’s decisión in this case fundamentally undermines the constitutional role of duly elected State Attorneys. Accordingly,- I dissent. •

QUINCE, J., concurs.

      . Similarly untenable is Ayala’s position that she has the authority to pick and choose (by consenting to reassignment in some -cases but objecting in others) when she is the prosecuting officer for the Ninth Circuit. While the Ninth Circuit voters elected Ayala as their state attorney, she holds that position' subject to Florida law, including section 27.14, by which the Governor effectuates his constitutional duty to ensure the faithful execution of the law through time-limited state attorney - assignments. See Finch, 254 So.2d at 205 (“The purpose of the time limitation ..in the [assignment] statute is to prevent the Chief Executive from frustrating the will of the voters of a judicial circuit by replacing ah elected state attorney with one chosen by the Governor from another circuit.”).

      . Because the power to prosecute, including whether to seek the death penalty, is a purely executive function, see State v. Bloom, 497 So.2d 2, 3 (Fla. 1986), we also reject Ayala’s argument that the executive orders violate the separation of powers doctrine of article II, section 3, of the Florida Constitution by im-permissibly encroaching upon the judiciary. See Fulk v. State, 417 So.2d 1121, 1126 (Fla. 5th DCA 1982) ("Although state attorneys, like all attorneys, are officers of the court,- the execution of criminal statutes by enforcement, including prosecution, is an executive function of government. The state attorney, when acting as a prosecuting officer under Article V, section 17, of the Florida Constitution and under chapter 27 of the Florida Statutes, is performing an executive function and not a judicial function.”) (Cowart, J., concurring specially) (footnote omitted).

      . Amici Curiae Former Judges, along with Current and Former Prosecutors, and Legal Community Leaders, filed a Brief in support of Ayala's petition. For ease of reference, they are referred to cumulatively here as “Amici Curiae Former Judges.”

      . Section 27.14 traces its origin back to chapter 5399, Laws of Florida, § 2 (1905), in which the Legislature authorized the Governor to exchange or reassign a State Attorney in the event of the disqualification of a State Attorney, "or if for any reason the Governor of the State thinks that the ends of justice would be best subserved.” In 1969, the Legislature amended the law to require this Court’s approval for exchanges dr assignments lasting longer than sixty days, and inserted the phrase "good and sufficient" to qualify the reason for acting. Ch. 69-1736, Laws of Fla.'

      . In fiscal year 2015-2016, Florida courts sent 498 people to prison for homicide offenses ranging from manslaughter to first-degree murder, but only seven to death row. Fla. Dep’t of Corrections, Annual Report 2015-2016, at 37, 49, http://www.dc.state.fl. us/pub/annual/1516/FDC_AR2015-16.pdf. As to the delay that State Attorney Ayala cited in finality for the victims of violent crimes, the unfortunate statistic is that the average time between offense and execution is 17.4 years. Id. at 36; see Interview of Aramis Ayala, WFTV Channel 9 (Mar. 15, 2017), at 6.
      According to DOC, there are currently 365 defendants on death row. Fla. Dep’t of Corrections, Offender Information Search, http:// www.dc.state.fl.us/OffenderSearch/ deathrowroster.aspx (July 17, 2017). Amici Curiae state that since the United States "Supreme Court approved the reinstatement of Florida's death penalty in 1976 ... less than half (only 33 of 67) of the counties [in Florida] have had executions, and 20 of Florida’s 67 counties currently have no representation among Florida's death row,’’ Amici Curiae Br. of the Am, Civil Liberties Union Found., Am, Civil Liberties Union of Fla., Florid[i]ans for Alts, to the Death Penalty, The Sentencing Project, & the NAACP Legal Def, & Educ, Fund, Inc. in Support of Pet’r Arámis Ayala, at 5. Further, "well over 40%” of the individuals currently on death row in Florida “were sentenced to death over twenty years ago,” and “ over 60 %—were sentenced to death over 15 years ago.” Id. at 13 (citing Fla. Dep’t of Corrections, Death Row Roster, http:// www.dc.state.fl.us/activeinmates/ deathrowroster.asp.) "Fifteen of the 23 death-row prisoners prosecuted in Ayala's circuit (comprising of Orange and Osceola Counties) were sentenced 15 years ago, or more.” hL


author: Levine, J.

text:
    Clarence TERRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-4219
    District Court of Appeal of Florida, Fourth District.
    [July 12, 2017]

      Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T. Acuna, Assistant Attorney General, West Palm Beach, for appellee.
   Levine, J.

Appellant appeals his convictions for thirteen counts of violating section 794.05(1), Florida Statutes (2014), which makes it unlawful for a person twenty-four years of age or older to engage in sexual activity with a person sixteen or seventeen years of age. Appellant claims a birth certificate with his same name was insufficient to prove he was twenty-four years of age or older because the state did not link the birth certificate to him and further claims the birth certificate by itself was insufficient evidence to prove his age. Appellant also claims that the late disclosure of the birth certificate procedurally prejudiced his defense.

We find that the trial court properly admitted the birth certificate as a self-authenticating public record and that the birth certificate, combined with jury’s ability to observe appellant as well as other circumstantial evidence, was sufficient to prove appellant’s age. We further find that appellant was not procedurally prejudiced because appellant’s defense did not concern his date of birth, and appellant’s date of birth was not new or undisclosed information. As such, we affirm.

Appellant was charged with thirteen counts of unlawful sexual activity with a minor. Before trial, appellant moved in limine to exclude prior felony convictions that occurred thirty-seven years earlier in 1978. The trial court denied the motion at the beginning of the three-day trial, which commenced on March 30, 2015. During opening statements, appellant argued that the victim was not credible.

Testimony during trial revealed that the victim met appellant six years earlier when appellant had worked for the victim’s grandparents. Appellant helped the victim’s family move. During the move and over the next few weeks, appellant and the sixteen-year-old victim engaged in sexual relations at appellant’s house.

During the testimony of a detective, the state asked for appellant’s date of birth. The detective sought to refresh his recollection with his report, and defense counsel objected based on hearsay. During a proffer, the detective testified that he obtained appellant’s date of birth from appellant’s driver’s license, a criminal history report, or appellant himself. Because of hearsay concerns, the state sought to introduce a copy of appellant’s birth certificate. Defense counsel requested a Richardson hearing and argued that there was no evidence linking the birth certificate to appellant.

After conducting a Richardson hearing, the trial court found no procedural prejudice because appellant’s defense did not concern appellant’s date of birth but rather focused on the victim’s credibility. The trial court also found that the defense’s strategy or trial preparation would not have been materially different if the birth certificate had been listed. The trial court further found that the issue of “linkage” between appellant and the birth certificate went to its weight, not its admissibility. Over appellant’s objection, the state then introduced a certified copy of appellant’s birth certificate, listing his date of birth as September 2,1956.

After the state rested, defense counsel moved for a judgment of acquittal, arguing that the birth certificate was insufficient to establish appellant was twenty-four years of age or older, which was an essential element of the crime. The trial court denied the motion. The jury found appellant guilty as charged.

The de novo standard of review applies in reviewing the denial of a motion for judgment of acquittal. Pagan v. State, 830 So.2d 792 (Fla. 2002). “If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” Id. at 803.

Appellant argues a judgment of acquittal was required because the state failed to prove his age. State v. Surin, 920 So.2d 1162 (Fla. 3d DCA 2006), is instructive. In Surin, the Third District found sufficient circumstantial evidence of the defendant’s age to convict him of sexual battery of a person under twelve years of age by a person eighteen years of age or older. “First, and most notably, the jury had the opportunity to observe defendant throughout the trial.” Id. at 1165. Additionally, there was evidence that the defendant married the victim’s mother in 1993, the defendant cared for his wife’s children and the victim, the victim referred to the defendant as “daddy,” the defendant was old enough to enter the country without his parents or family, and the defendant’s wife referred to him as an adult during her testimony. The Third District concluded that “this combination of the ability of the jury to observe the defendant throughout the trial taken together with the other circumstantial evidence offered was sufficient.” Id.

Similarly, in the instant case the jury had the opportunity to observe appellant during the three-day trial. Appellant was fifty-eight years old at the time of trial and fifty-seven years old at the time of the crimes. Thus, it would have been reasonable for a jury to infer from appellant’s appearance that he was well over the age of twenty-four at the time of the crimes. Additionally, the state introduced a certified copy of a birth certificate which showed appellant’s date of birth. There was also evidence that the victim met appellant six years earlier when he worked for her grandparents; it was implied that appellant had a house; appellant told the victim’s mother that he wanted to be an “uncle figure” to the victim; it was implied appellant had a daughter when he referred to his “little girl” during a controlled phone call; and the victim testified that after appellant was in jail, she learned appellant was “interested” in her mother. Like in Surin, this circumstantial evidence, combined with the jury’s ability to observe appellant during trial, was sufficient.

Additionally, the trial court correctly determined that the lack of evidence linking the birth certificate to appellant went to the weight of the evidence, not its admissibility. A birth certificate, as a certified copy of an official public record, is self-authenticating under section 90.902(4), Florida Statutes, and needs no additional foundation other than what is required for a valid certification in that subsection. Moncus v. State, 69 So.3d 341, 343 (Fla. 4th DCA 2011). See also Ordonez v. State, 862 So.2d 927, 931 (Fla. 2d DCA 2004) (“State’s arguments concerning the name on the birth certificate and the origins of that certificate go to the weight to be given the document rather than its admissibility.”); United States v. Deverso, 518 F.3d 1250, 1256 (11th Cir. 2008) (stating that defendant’s challenge to the reliability of information contained in victim’s birth certificate goes to the weight of the evidence, not its admissibility).

Appellant also argues the trial court abused its discretion in finding he was not procedurally prejudiced by the late disclosure of the birth certificate. We find the trial court did not abuse its discretion in finding that appellant was not procedurally prejudiced. The defense’s theory was that the victim was not credible. Additionally, the discovery provided to the defense, including the detective’s report, indicated that appellant’s date of birth was September 2, 1956. Appellant’s date of birth was not new or undisclosed information. See Snelgrove v. State, 921 So.2d 560, 568, 568 n.15 (Fla. 2005) (no prejudice in failing to suppress a letter already known to the defendant); Craig v. State, 585 So.2d 278, 281 (Fla. 1991) (finding no error in admitting testimony from an undisclosed officer where defendant had been provided with a copy of the officer’s report and was aware of the content of his testimony). Further, appellant’s own court filings indicated he had felony convictions older than the age threshold of twenty-four years. Specifically, appellant sought to exclude prior felony convictions that occurred thirty-seven years earlier in 1978. Finally, the state did not rely solely on appellant’s birth certificate to establish his age at the time of the crimes.

In sum, we find the trial court did not err in denying the motion for judgment of acquittal and in finding no procedural prejudice to the defense. As such, we affirm.

Affirmed,

Damoorgian and Giklin, JJ,, concur.

      . Richardson v. State, 246 So.2d 771 (Fla. 1971).