The Volokh Conspiracy
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From Fried v. State, decided today by the Florida Supreme Court, in an opinion by Justice Ricky Polston (joined by Chief Justice Carlos Muniz and Justices Charles Canady, John Couriel, and Jamie Grosshans):
[T]he common law doctrines of legislative immunity and governmental function immunity [do not] prohibit the statutory civil actions and penalties imposed against local governments and officials for certain violations of … the firearms preemption statute…
In 2011, the Legislature amended the Preemption Statute [that preempts most local regulations of firearms], to include a series of civil penalties and actions, which apply to:
Any person, county, agency, municipality, district, or other entity that violates the Legislature's occupation of the whole field of regulation of firearms and ammunition, as declared in subsection (1), by enacting or causing to be enforced any local ordinance or administrative rule or regulation impinging upon such exclusive occupation of the field shall be liable as set forth herein….
[The sections] applicable to local officials … provide as follows:
(c) If the court determines that a violation was knowing and willful, the court shall assess a civil fine of up to $5,000 against the elected or appointed local government official or officials or administrative agency head under whose jurisdiction the violation occurred.
(d) Except as required by applicable law, public funds may not be used to defend or reimburse the unlawful conduct of any person found to have knowingly and willfully violated this section….
[B]ecause legislative immunity as applied to local officials is a common law doctrine that the Legislature abrogated in the context covered by the Preemption Statute, we conclude that legislative immunity does not prohibit the statutory penalties ….
[W]e find no merit in Petitioners' argument that [the penalty provision] violates separation of powers principles because it authorizes the judiciary's interference with legislative acts of local officials. Petitioners have provided no basis in the Florida Constitution or precedent indicating that it would exceed the scope of judicial power for courts to interpret statutes and hear cases where parties seek to enforce statutory violations and penalties duly enacted by the Legislature. To the contrary, it is within the judiciary's constitutional authority and responsibility to do so.
We likewise reject Petitioners' argument that legislative immunity flows from article VIII of the Florida Constitution. To the contrary, article VIII expressly grants the Legislature plenary authority over the state's local governments, which have only those "powers of local self-government not inconsistent with general law." Local governments, including counties and municipalities, are creatures of the State without any independent sovereignty….
Petitioners also rely heavily on federal law recognizing legislative immunity for state, regional, and local legislators. For members of Congress, legislative immunity was established in the Speech or Debate Clause of the United States Constitution, which protects not only the speech and debate of legislators but also voting on legislative acts. To the extent Petitioners rely on federal case law that has stated that article I, section 6 of the United States Constitution (the Speech or Debate Clause) creates a form of legislative immunity, Florida's Constitution does not contain a Speech or Debate Clause providing legislative immunity to members of the Legislature….
[G]overnmental function immunity [also] does not prohibit the [penalty provisions] ….
Florida has a broad statutory waiver of sovereign immunity in tort suits for the State. However, governmental function immunity, also called discretionary function immunity, is a doctrine under which "certain 'discretionary' governmental functions remain immune from tort liability … because certain functions of coordinate branches of government may not be subjected to scrutiny by judge or jury as to the wisdom of their performance." We have explained that "[i]t is 'the nature of the conduct, rather than the status of the actor,' that determines whether the function is the type of discretionary function which is, by its nature, immune from tort liability."
Petitioners argue that the 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. However, to engage in conduct that is prohibited by statute is not a discretionary function. As the First District concluded below, "[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." …
The constitution … confers exclusively upon the Legislature the power to abrogate common law and restrict local government power. For example, the Legislature can abolish counties by general law, see art. VIII, § 1, Fla. Const. ("The state shall be divided by law into political subdivisions called counties. Counties may be created, abolished or changed by law …."), and municipalities exist only by virtue of general law. The Legislature is likewise authorized to enact general laws preempting all regulation in an area of the law.
By enacting the Preemption Statute, the Legislature exercised its power to preempt the field of firearms and ammunition (subject to limited exceptions)…. The imposition of these civil statutory [penalty] actions for violations of the Preemption Statute does not violate governmental function immunity….
Justice Jorge Labarga dissented:
As noted by the trial court, "[j]udicial power is vested in courts alone and judges cannot wield executive or legislative power. As a part of this separation, Florida courts cannot question any legislator about her or his legislative process because it would be impermissible judicial meddling in a purely political matter." Consequently, 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.
As aptly observed by the trial court, "[b]ecause local governments must have what amounts to small legislatures, and because courts cannot interfere in legislative processes, neither this court, nor any other court in Florida, can enforce the civil penalty provisions … against local legislators."
Congratulations to Daniel William Bell, who represented the state.