In the recent decision Fried v. Florida, the Florida Supreme Court confronted the tension between the legislature’s authority and the common law doctrines of legislative and government function immunity. The opinion, which was written by Justice Ricky Polston and joined by Chief Justice Carlos Muñiz, Justice Charles Canady, Justice John Couriel, and Justice Jamie Grosshans, addressed whether the Florida Legislature could validly create statutory civil actions and penalties to facilitate the enforcement of the state’s firearms preemption statute.  

Florida’s firearms preemption statute states explicitly that the legislature “is occupying the whole field of regulation of firearms and ammunition . . . to the exclusion of all existing and future county, city, town, or municipal ordinances or any administrative regulations or rules adopted by local or state government.”  In 2011, the legislature amended the preemption statute to include a series of civil penalties and actions applicable to “Any person, county, agency, municipality, district or other entity that violates the legislature’s occupation of the whole field of regulation of firearms or ammunition.”  The amended statute provided for fines up to $5,000.00 against the “local government official or officials or administrative agency head under whose jurisdiction the violation occurred” and limited use of public funds to defend or reimburse knowing or willful violations.  It also provided a civil cause of action for those affected by local restrictions to seek injunctive relief and actual damages. 

Thirty municipalities, three counties, more than seventy elected officials, and one private citizen sued, seeking a declaration that these provisions were constitutionally invalid.  They argued on summary judgment that (1) legislative immunity precluded enforcement of the penalties in Fla. Stat. § 790.33(3) against local officials and (2) discretionary government function immunity precluded actions against local government governments under Fla. Stat. §§ 790.33(3)(f) and (4)(c).  The circuit court granted summary judgment to the plaintiffs. It held legislative immunity protected local legislators based on both the separation of powers clause of the Florida Constitution and the U.S. Constitution.  Similarly, it concluded on the government function question that enforcement of the penalty provisions against local governments would “create liability for enacting legislation—an inherently discretionary governmental function.”  Florida’s First District Court of Appeals reversed, determining “the statutory penalty provisions disputed on appeal are valid and enforceable.”  The Florida Supreme Court took up de novo review of both immunity issues.

Legislative Immunity

As the Supreme Court summarized it, legislative immunity “is commonly understood as a doctrine that protects legislators from being sued for all actions taken in their lawmaking capacity and is a doctrine broadly recognized by federal and state courts alike.”  

Petitioners argued that the First District erred because making local firearms regulations is a “purely legislative act,” and “purely legislative acts” are entitled to legislative immunity.  They asserted legislative immunity for local officials properly arose out of (1) state common law; (2) the separation of powers clause of the Florida Constitution, and (3) federal law.  The court addressed each source in turn.

First, the court acknowledged that Florida does have a common law legislative immunity doctrine. However, “[a]n immunity conferred by common law may be abrogated by statute.”  The court looked to the long and explicit history of firearm regulation preemption in the state and concluded that the preemption statute abrogated legislative immunity in this context when it provided that civil penalties may be imposed on local officials.  Quoting the First District’s opinion, the court stated: “legislative immunity does not shield individuals who knowingly and willingly act contrary to or beyond the limits of state law.”  The court emphasized later in the opinion that “to the extent the parties and amici disagree with this legislative decision or argue that the challenged provisions are unnecessary or unwise, it is for the Legislature to evaluate and resolve those policy concerns.”  

Second, the court addressed the argument that “legislative immunity arises from the separation of powers in the Florida Constitution.”  Petitioners based much of this argument on League of Women Voters of Florida v. Florida House of Representatives, where the court held that “a legislative privilege exists in Florida, based on the principle of separation of powers.”  The court quickly dismissed this argument as well—both because the League of Women Voters decision addressed an evidentiary privilege, not legislative immunity from suit, and because it concluded there was “no merit” to the assertion that the challenged statutes violated separation of powers principles.  Separately, the court also emphasized that Article VIII of the Florida Constitution not only did not grant such immunity but—“to the contrary”—"expressly grants the Legislature plenary authority over the state’s local governments,” emphasizing that “[l]ocal governments, including counties and municipalities, are creatures of the State without any independent sovereignty.” 

Petitioners attempted to get around this with the assertion that the challenged statutory scheme would penalize mistaken violations. This did not persuade the court, which responded that “all that is required to avoid the penalties . . . is to refrain from knowingly and willfully violating the Preemption Statute.” 

Finally, petitioners tried to use federal law to support their legislative immunity argument. The Court held this was improper because (1) Florida does not have the same Speech and Debate Clause  as the U.S. Constitution and (2) the United States Supreme Court has made clear that legislative immunity is grounded in the federal common law, not the Speech and Debate Clause.  

The court concluded its analysis by restating its conclusion: legislative immunity in Florida is solely a common law doctrine; the legislature therefore can and did abrogate it; and the challenged penalty provisions therefore did not violate the Florida Constitution. 

Government Function Immunity

The court much more briefly addressed the government function immunity issue. It began its analysis by noting the state’s “broad statutory waiver of sovereign immunity in tort suits” and acknowledging that the discretionary function exception is a limit on this in regard to certain activities. 

Petitioners argued that “enforcement of penalties against local governments would violate governmental function immunity because the process of determining what is preempted under the Preemption Statute remains inherently discretionary.”  But the court again affirmed the reasoning of the First District: “[g]overnment function immunity does not shield entities that act contrary to or more restrictively than state law in the completely preempted field of firearm and ammunition regulation.”  In reaching this conclusion, the court focused on three principles embodied in the Florida Constitution: (1) the legislature has plenary authority over the state’s local governments; (2) only the legislature can “abrogate the common law and restrict local government power”; and (3) the legislature is “authorized to enact general laws preempting all regulation in an area of law.”  It concluded that the legislature could and did act to preempt the firearms regulation field and abrogate immunity in that area and that the provisions authorizing suit against local governments were therefore also constitutional.

Justice Labarga’s Dissent

One justice dissented from the majority opinion, Justice Jorge Labarga.  Labarga took a position similar to that of the circuit court, arguing that the state legislature overreached its broad power with these penalty provisions. He posited that the statutes could not be upheld because they necessarily require the judiciary to become involved in “wield[ing] . . . legislative power”: “the requirement of judicial involvement in determining whether the action of the public official was ‘knowing and willful’ amounts to nothing less than an impermissible judicial intrusion into the official’s legislative thought process, and it undermines the official’s ability to effectuate the constituents’ will.” 

In the eyes of the majority of the court, however, there was no such overreach or conflict. In their view, the legislature preempted the field of firearms regulation. And then it took reasonable action to make sure local government entities and officials respected that preemption, all within the appropriate confines of its authority.

 

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