Florida Court Snapshot

On July 3, 2008, the Florida Supreme Court ruled that Florida Governor Charlie Crist usurped the Florida Legislature’s power to make law when he executed a compact with the Seminole Indian Tribe of Florida (the “Seminoles”) to allow the Seminoles to conduct on tribal lands casino gambling (termed “gaming”) that is illegal throughout much, or all, of the rest of the state. Florida House of Representatives Speaker Marco Rubio¹ brought the issue before the court by filing a Petition for issuance of a writ of quo warranto² in the case styled Florida House of Representatives, et al., v. The Honorable Charles J. Crist, Jr.³ Justice Raoul Cantero, in one of his last written opinions for the court,⁴ penned the majority’s decision, which included Justices Wells, Anstead, Pariente, and Bell.⁵ Chief Justice Quince concurred only in the result but did not elaborate. Justice Lewis also concurred in the result, but did write an opinion to explain his disagreement with the reasoning behind the majority’s decision. This article attempts to highlight and summarize the decision and to examine Justice Lewis’s bases for disagreement with the majority’s reasoning.

Background

The court began with a thorough examination of the relationship between sovereign Indian tribes and the federal and state governments, particularly with respect to gaming. The court next considered the history of gaming negotiations between the Seminoles and Florida, and how the courts of other states have handled Indian gaming compacts. Lastly, the Court analyzed and applied Florida’s Constitution to the question of whether the Governor exceeded his authority by executing the compact without legislative approval.

The statutory foundation for the compact is the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-2721 (2000) (“IGRA”). Because Indian tribes are independent sovereigns, and because the U.S. Constitution gives Congress the exclusive power to override their sovereignty, IGRA is the only basis for a state’s involvement in gaming on Indian lands.⁶ IGRA prescribes that Class III gaming⁷ is allowed on tribal lands when it is authorized by tribal ordinance, “located in a State that permits such gaming for any purpose by any person, organization, or entity,” and conducted under a compact between the tribe and the state. Importantly, IGRA requires a state to negotiate with an Indian tribe in good faith to make a gaming compact. If a state refuses to negotiate or if negotiations fail, IGRA allows either the tribe to sue the state in federal court, with the state’s consent,⁸ or the Secretary of the Department of the Interior (the “Department”) to unilaterally prescribe procedures for Class III gaming on Indian lands within the state.

Execution of the Compact 

As the court detailed, the Seminoles believe negotiations with Florida have failed after 16 years of attempting to negotiate a compact with the state. The details of the failed negotiations are beyond the scope of this article; suffice it to say, the Seminoles began negotiating with Florida Governor Lawton Chiles in January 1991 and were unable to agree on a compact despite trying for over sixteen years through three different gubernatorial administrations. The obvious implication, and the Seminoles’ repeated contention, is that Tallahassee⁹ was not negotiating in good faith.

After giving several ultimatums over an eight year period, the Department allowed Florida until November 15, 2007, to negotiate and execute a gaming compact with the Seminoles, or the Department would unilaterally issue procedures allowing Class III gaming on Seminole lands. On the day before the Department’s deadline, Governor Crist executed a compact with the Seminoles to allow specified Class III gaming exclusively at seven Seminole casinos throughout Florida. In exchange, the compact required the Seminoles to pay Florida a portion of the revenues amounting to well over $100 million per year.¹⁰

The Legislature’s Petition Objecting to the Execution of the Compact

Five days after Governor Crist executed the gaming compact with the Seminoles, the Florida House of Representatives, led by Speaker Rubio, filed its Petition in the Florida Supreme Court asking the court to find, based on the separation of powers doctrine in Florida’s Constitution, that the Governor did not have the authority to bind the state to a gaming compact without the Legislature’s approval where the compact conflicted with the state’s public policy against Class III gaming in Florida.¹¹ The Legislature argued that the compact essentially changed state law by violating Florida’s legislatively-stated public policy against Class III gaming. As such, the Legislature argued, the compact was an essentially legislative function inappropriately taken by the Governor.

The Governor’s Opposition to the Petition

In opposition to the Petition, Governor Crist argued that the Florida Constitution’s “Necessary Business” clause gave him the authority to unilaterally negotiate and execute the gaming compact with the Seminoles in light of the looming deadline of the Department’s ultimatum. The “Necessary Business” clause, Article IV, Section 1 of the Florida Constitution, provides in pertinent part: “[t]he governor shall take care that the laws be faithfully executed ... and transact all necessary business with the officers of government.” Governor Crist argues that he could not ignore the federal directive from the Department, making his negotiation and execution of the compact necessary business he was obligated to undertake.  

The Florida Supreme Court’s Analysis

In determining the legal issues raised by the House of Representatives’ Petition and the Governor’s response, the court, while acknowledging that neither was determinative, looked first to the way compacts have traditionally been handled in Florida and second to the way the courts of other states have resolved the question of whether a governor can unilaterally bind the state to an IGRA compact. Considering Florida’s tradition of handling compacts, the court found that “[i]n most cases, the Legislature enacted a law” establishing the compact, “[i]n others, the Legislature authorized the Governor to execute a compact in the form provided in a statute,” and “[i]n a few... the Legislature by statute approved and ratified the compact.” The court “found no instance in which the governor has signed a compact without legislative involvement.” Similarly, the court found that courts of other states have overwhelmingly concluded that the negotiation and execution of an IGRA compact involve powers that fundamentally are legislative and exclusively belong to the legislature. While not determinative or binding, the traditions of Florida and the rulings of other states’ courts bolster the court’s resolution of the issue based on the separation of powers doctrine in Florida’s Constitution.

The separation of powers doctrine is found in Article II, Section 3 of the Florida Constitution, which provides: “[t]he powers of state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.” The court, in analyzing the appropriate application of the doctrine, recognized that it has “‘traditionally applied a strict separation of powers doctrine’”¹² but that “the state constitution does not exhaustively list each branch’s powers” and that “[w]e must therefore expand our analysis beyond the plain language of the constitution” to determine which powers are appropriately exercised by each branch.

The court, citing its 75 year old decision in Florida Motor Lines v. Railroad Commissioners,¹³ stated that “what determines whether a particular function is legislative, executive, or judicial... is not ‘the name given to the function or to the officer who performs it’ but the ‘essential nature and effect of the governmental function to be performed.’” As mentioned above, the Legislature’s position was that the compact changed state law by violating Florida’s legislatively-enacted public policy against Class III gaming, a crime in most of the state. Because the power to make law rests exclusively with the Legislature, it argued that Governor Crist overstepped his constitutional bounds. The Legislature also argued that because the Florida Constitution does not specifically authorize Florida’s governor to unilaterally negotiate and execute compacts, the authority to do is a “residual” power and that all residual powers belong to the Legislature. The court noted that it had previously “implied” that any residual power belongs to the Legislature.¹⁴

The Florida Supreme Court’s Conclusion

The court declined to determine “whether the authority to bind the state to compacts always resides in the legislature,” i.e., whether Florida’s governor would ever be allowed to unilaterally negotiate and execute a gaming compact with an Indian tribe. The court stated that the determination of questions of fundamental policy is a legislative power¹⁵ and that, “even if the Governor has the authority to execute compacts, [the terms of those compacts] cannot contradict the state’s public policy, as expressed in its laws.”¹⁶ The court found that the Seminole gaming compact executed by Governor Crist “violates the state’s public policy about the types of gambling that should be allowed.” Therefore, the court concluded that “the Governor’s execution of a compact authorizing types of gaming that are prohibited under Florida law violates the separation of powers. The Governor has no authority to change or amend state law. Such power falls exclusively to the Legislature.” The court specifically did “not resolve the broader issue of whether the Governor ever has the authority to execute compacts without either the Legislature’s prior authorization or, at least, its subsequent ratification.” The court also did not actually issue the writ of quo warranto requested by the Legislature because it “believe[d] the parties will fully comply with the dictates of [its] opinion” without need of the actual issuance of the Writ.

Justice Lewis’s Disagreements with the Majority

Justice Fred Lewis concurred in the result of the majority’s opinion, but disagreed in at least two instances with the legal underpinnings of the decision. Justice Lewis disagreed with the court’s “overly restrictive” analysis of the Governor’s authority to enter into a compact. He also disagreed with the procedural vehicle chosen by the Legislature—the request for issuance of the extraordinary writ of quo warranto. It seems the majority may have addressed Justice Lewis’s concerns during the drafting, discussion, and re-drafting process that takes place during any high court’s preparation of a written opinion.

Concerning his disagreement with the “overly restrictive” nature of the majority opinion, Justice Lewis stated:

[I]f the Compact had not granted and authorized certain types of Class III gaming that are specifically prohibited by state law, the Governor would have been authorized— pursuant to the necessary-business clause—to enter into a compact on behalf of the State without either legislative authorization or ratification under the circumstances presented by the instant case.... To the extent the majority suggests otherwise, I disagree.

It seems the majority may have addressed Justice Lewis’s concerns in this regard because it specifically emphasized the narrowness of its ruling and specifically stated: “We express no opinion on whether the ‘necessary business’ clause may ever grant the governor authority to bind the State to an IGRA compact.”

Justice Lewis also objected to the procedural vehicle by which the Legislature sought to legally address the compact, stating his concern “that we [the court] may lack quo warranto jurisdiction to address the issue as reframed by the majority.” In summary, Justice Lewis’s disagreement with the procedural vehicle was that quo warranto jurisdiction only allowed the court to determine whether the Governor had the power to execute a compact, not whether he properly exercised that power in this specific instance. In footnote 13 of his concurrence, Justice Lewis states:

Since the majority does not address the question of whether the Governor may enter into a compact, this appears to be a case in which we have chosen to address the legal correctness of the Governor’s action instead of his ultimate authority to negotiate and enter into inter-sovereign compacts on behalf of the State.

Justice Lewis’s position is bolstered by the explicit request of the Legislature’s Petition that the court rule that the Governor cannot negotiate and execute any Indian gaming compact without the Legislatures authorization, regardless of whether the compact would violate Florida’s public policy. Justice Lewis suggested that a declaratory judgment action was the appropriate vehicle for the Legislature to challenge Governor Crist’s exercise of his authority. The majority seems to disagree with Justice Lewis’s more narrow construction of quo warranto jurisdiction, reasoning that “In prior quo warranto cases... we have considered separation-of-powers arguments normally reviewed in the context of declaratory judgments, such as whether the Governor’s action has usurped the Legislature’s power, ‘where the functions of government would be adversely aff ected absent an immediate determination by this court.’” In the end, however, it seems the majority may have side-stepped the issue by withholding issuance of the writ and suggesting that the parties “fully comply with the dictates” of the court’s opinion.

Conclusion

The practical effect of the court’s decision is not yet known. Governor Crist was clearly attempting to reach a pragmatic result by negotiating the Seminole gaming compact. The Department had threatened to impose Class III gaming procedures for Seminole lands in Florida and the Governor determined that the most beneficial move for Florida would be to negotiate a compact under which Florida would receive a portion of the gaming revenues. The infusion of cash is desperately needed in Florida¹⁷ and Governor Crist knew that no such provision would be included in procedures issued by the Department. It remains to be seen whether the Department will make good on its ultimatum to issue procedures allowing Class III gaming on Seminole lands in Florida in the absence of a negotiated compact between Florida and the Seminoles.

 

Florida Court Strikes Another Blow Against Automobile Defect Class Actions

Florida’s Third District Court of Appeal¹⁸ recently reversed the class certification in an automobile products liability class action styled Kia Motors America Corp. v. Butler.¹⁹ This article summarizes the court’s reasoning in reversing the certification and offers a suggestion of its possible effects on Florida litigation.

Factual and Legal Background

The class plaintiff, Yvonne Butler, alleged that her 2000 model year Kia Sephia had a defective front brake system that caused the brakes to prematurely wear.²⁰ Ms. Butler’s Complaint alleged that all Florida purchasers of 1999-2001 model year Kia Sephias were similarly damaged by the defective front brakes. She claimed the defective brakes caused the “‘vehicle to be unable to stop, suffer an impaired stopping performance, exhibit increased stopping distances, brake shudder, brake vibration, unpredictable and violent brake pedal pressures, brake lock up, and loss of control when activated,’” all of which decreased the car’s value. Despite alleging the existence of a class, it seems Ms. Butler was aware that not all of her class members actually suffered the brake problems of which she complained. The court seized upon that point, stating, “Ms. Butler, through her counsel, envisions an individual award to each member of the class, whether or not the alleged deficiency manifested itself in a particular case,” and later, “Ms. Butler forgets... that fewer than half of the class members have reported brake difficulty.”  

Florida class actions are governed by the requirements of Rule 1.220, Fla.R.Civ.P. Rule 1.220(a) requires as a prerequisite to a class action that the trial court first find that:

(1) the members of the class are so numerous that separate joinder of each member is impracticable, (2) the claim or defense of the representative party raises questions of law or fact common to the questions of law or fact raised by the claim or defense of each member of the class, (3) the claim or defense of the representative party is typical of the claim or defense of each member of the class, and (4) the representative party can fairly and adequately protect and represent the interests of each member of the class.

These prerequisites to class action are usually called numerosity, commonality, typicality, and adequacy of representation.

After meeting the prerequisites, Rule 1.220 also requires a class plaintiff to meet one of the three subsections of Rule 1.220(b). The court declared that (b)(3) was the relevant subsection for Ms. Butler’s action. Rule 1.220(b)(3) requires that:

the questions of law or fact common to the claim or defense of the representative party and the claim or defense of each member of the class predominate over any question of law or fact affecting only individual members of the class, and class representation is superior to other available methods for the fair and efficient adjudication of the controversy.

Analysis

The court focused its analysis on the predominance and superiority inquiries required by Rule 1.220(b)(3).²¹ In addressing whether the common questions of law and fact predominated over individual questions, the court tried to envision how a class action trial would proceed.²² The court stated that the key issue was whether Ms. Butler could prove the cases for each of the other members of her class by proving her own individual case. It determined that she could not. Instead, relying on its observation that not all class members suffered the brake defect of which Ms. Butler complained, the court envisioned that a class action trial would first require significant individual inquiry and an “inestimable” number of mini-trials to determine the proper class members. The court found its evaluation true for both questions of law and questions of fact.²³

The court next turned to the superiority inquiry—whether all other methods of resolving the dispute are inferior to class action. The court determined that, in fact, several other methods were superior to class action in Ms. Butler’s case. In particular, the court cited Florida’s Motor Vehicle Warranty Enforcement Act, Chapter 681, Fla. Stat., (a/k/a Florida’s “Lemon Law”) and the federal Magnuson-Moss Warranty Improvement Act, 15 U.S.C. §§ 2301-12, as assuring that vehicle owners sold an inferior product are not “outgunned” by large car companies. The court pointed out that attorney fees are recoverable by prevailing consumers under both statutes.

The court also suggested that Ms. Baker could have filed a petition under 49 U.S.C. §§ 30101-30170 with the National Highway Traffic Safety Administration to seek a national recall of the allegedly defective Kias. The court determined that a recall would reach and protect currently “uninjured” class members that would have to be painstakingly excluded from the eventual trial of Ms. Butler’s class action. Because a recall would protect more consumers, the court found a recall petition to the NHTSA to also be superior to a class action.

Conclusion

The court determined that Ms. Butler’s attempted class action did not present common questions of either law or fact among class members and was actually inferior to other methods of seeking resolution and redress. On those bases, it reversed the trial court’s certification of a class. The decision is not particularly monumental—as the court noted, other courts are already “‘hesitant to certify classes in... cases involving allegedly defective motor vehicles and parts.’”²⁴  The court even referenced its earlier decision in Volkswagen of America, Inc. v. Sugarman,²⁵ with essentially the same holding. However, it bolsters the defense of automobile products liability class actions in Florida and further raises the bar for plaintiff attorneys who may seek to bring such actions.

* Morgan Wood Streetman is the principal of Streetman Law in Tampa, Florida.

 

Endnotes

1  Speaker Rubio is a Republican from the 111th Congressional District in western Miami-Dade County.  He has disagreed with Governor Crist, also a Republican, on several issues including Florida property tax reform and off shore drilling. E.g., William March, “Suit Widens Crist, Rubio Rift,” The Tampa Tribune, Dec. 2, 2007, available at http://www2.tbo.com/content/2007/dec/02/ me-suit-widens-crist-rubio-rift/news-breaking/ (last accessed on Sept. 16, 2008).

2  A writ of quo warranto is an extraordinary writ that may be issued to a state officer or agency that has improperly exercised a power or right derived from the state.

3  Case No. SC07-2154.  A copy of the decision is available at http://www.floridasupremecourt.org/pub_info/summaries/briefs/07/072154/Filed_07-03-2008_Opinion.pdf (last accessed on Sept. 16, 2008).

4  On April 11, 2008, Justice Raoul Cantero announced his resignation from the Florida Supreme Court effective September 6, 2008. The court’s official media release is available at http://www.floridasupremecourt.org/pub_info/documents/press releases/2008/04-11-2008_Cantero_Press_Release.pdf (last accessed on Sept. 16, 2008).

5  Justice Kenneth Bell has also announced his resignation from the Florida Supreme Court effective October 1, 2008. The court’s official media release is available at http://www.floridasupremecourt.org/pub_info/documents/pressreleases/2008/05-23-2008_Bell_ Press_Release.pdf (last accessed on Sept. 16, 2008).

6  But see Act of Aug. 15, 1953, Pub. L. No. 280 § 6, 67 Stat. 588, 590 (1953). As stated by the court, “Congress has... conferred on the states the authority to assume jurisdiction over crimes committed on tribal land... and Florida has assumed such jurisdiction. See ch. 61-252, §§ 1-2, at 452-53, Laws of Fla. (codified at § 285.16, Fla. Stat. (2007)).” Therefore, to the extent gaming is a crime in Florida, it is prohibited on tribal lands within the state.

7  Under IGRA, Class III gaming includes slot machines and “banked” card games in which participants play against the house (e.g., blackjack).

8  States are immune from lawsuits to which they do not consent by the doctrine of sovereign immunity enshrined in the Eleventh Amendment to the Constitution of the United States of America.  Florida’s immunity in this exact situation was affi rmed by the United States Supreme Court in Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996).

9 Tallahassee is Florida’s capitol city and the seat of its state government.

10 It should be noted that under the gaming procedures the Department had threatened to unilaterally issue on or after November 15, 2007, the Seminoles would not have been obligated to pay portions of their gaming revenue to Florida as they would under Governor Crist’s compact.

11  Despite its public policy, Florida currently allows some Class III gaming within the state.  Article X, Section 15 of the Florida Constitution allows the state to operate a lottery.  Article X, Section 23 of the Florida Constitution allows Vegas-style slot machines in Miami-Dade and Broward counties.

12  Citing the controversial case of Bush v. Schiavo, 885 So. 2d 321, 329 (Fla. 2004) (quoting State v. Cotton, 769 So. 2d 345, 353 (Fla. 2000)).

13  129 So. 876, 881 (Fla. 1930).

14  Citing State ex rel. Green v. Pearson, 14 So. 2d 565, 567 (Fla. 1943) (“The legislative branch looks to the Constitution not for sources of power but for limitations upon power.  But if such limitations are not found to exist, its discretion reasonably exercised may not be disturbed by the judicial branch of the government.”), and State ex rel. Cunningham v. Davis, 166 So. 289, 297 (Fla. 1936) (“The test of legislative power is constitutional restriction; what the people have not said in their organic law their representatives shall not do, they may do.”).

15  Citing B.H. v. State, 645 So. 2d 987, 993 (Fla. 1994) (“[T]he legislature’s exclusive power encompasses questions of fundamental policy and the articulation of reasonably definite standards to be used in implementing those policies.”), and Askew v. Cross Key Waterways, 372 So. 2d 913, 925 (Fla. 1978) (stating that under the nondelegation doctrine, “fundamental and primary policy decisions shall be made by members of the legislature”).

16  The court emphasized the point by later stating: “By authorizing the [Seminole] Tribe to conduct ‘banked card games’ that are illegal throughout Florida—and thus illegal for the Tribe [see note X, infra,]—the Compact violates Florida law. See Chiles v. Children A, B, C, D, E, & F, 589 So. 2d 260, 264 (Fla. 1991) (‘Th is court has repeatedly held that, under the doctrine of separation of powers, the legislature may not delegate the power to enact laws or to declare what the law shall be to any other branch.’).”

17  Florida’s budget shortfall as of mid-FY 2009 sits at $1.7 billion.  See, e.g., Elizabeth McNichol & Iris J. Lav, State Budget Troubles Worsen, A Report by the Center on Budget and Policy Priorities, Sept. 8, 2008, available at http://www.cbpp.org/9-8-08sfp.htm (last accessed on Sept. 16, 2008).

18  Article V, Section 4 of the Florida Constitution created Florida’s District Courts of Appeal to hear appeals of trial courts’ final judgments or orders, and some non-final orders, that cannot be heard in Florida’s Supreme Court or circuit courts.  Rule 9.130(a), Fla.R.App.P., provides for Florida’s District Courts of Appeal to hear non-final orders that determine that a class should be certified.

19  Case No. 3D05-1145 (Fla. 3d DCA June 11, 2008).

20  Ms. Butler was represented in part by Michael D. Donovan and his firm Donovan Searles, LLC of Philadelphia, Pennsylvania.  Mr. Donovan and his firm have filed nearly identical actions against Kia in other states.  E.g., Samuel-Bassett v. Kia Motors America Inc., 143 F. Supp. 2d 503 (E.D.Pa.2001) (removed from Pennsylvania state court); Little v. Kia Motors America, Inc., Case No. UNN-L800-01 (N.J.L.D. Aug. 20, 2003).

21 The court did not explain why it did not address the class certification’s apparent failure to meet the prerequisites of subsections 3 and 4 of Rule 1.220(a), commonality and typicality.

22  In doing so, the court was following the dictate of Humana, Inc. v. Castillo, 728 So. 2d 261, 266 (Fla. 2d 1999), rev. dismissed, 741 So. 2d 1134 (Fla. 1999).

23  As the court noted, “Rule 1.220(b)(3) reads in alternative on this prong.”  In other words, either questions of fact or questions of law must predominate. 

24  Quoting Sanneman v. Chrysler Corp., 191 F.R.D. 441, 449 (E.D. Pa. 2000).

25  909 So. 2d 923 (Fla. 3d DCA 2005).

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