Tuesday, November 22, 2005

Separation of Powers - Part 3

“How noble the law, in its majestic equality, that both the rich and poor are equally prohibited from peeing in the streets, sleeping under bridges, and stealing bread!” -- Anatole France
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Legal Arguments:

C. Caselaw on Separation of Powers

Most case law on Florida Separation of Powers deals with legislatively improper delegation of authority, authority without proper restrictions, or authority in a constitutionally prohibited zone to the executive and executive agencies. This case focuses on these improper delegations of authority from the legislature to the judiciary to affect the purposes of Chapter 61 “Dissolution of Marriage” Fla. Stat. alimony provisions.

The Florida Legislature is vested with the plenary authority to enact laws, subject only to limitation by the state constitution. (Art. III, § 1, Fla. Const.; Bd. of Pub. Instruction v. Wright, 76 So. 2d 863, 864 (Fla. 1955) (en banc).

The legislative branch bears the responsibility to protect the rights of citizens, Satz v. Perlmutter, 379 So. 2d 359, 361 (Fla. 1980). It has the exclusive obligation to enact social policy. Krischer v. McIver, 697 So. 2d 97, 104 (Fla. 1997). Most importantly for present purposes, the legislature defines and administers the regulation of dissolution of marriage. See, e.g., Chapter 61 Part I (2003) Fla. Stat. The judicial branch, by contrast, enjoys the exclusive power to “administer justice and resolve disputes within the common law and the laws established by the legislature.” Art. V, § 3, Fla. Const. (citings generally from Bush 885 So.2d)

There are essentially two ways in which the principle of separation of powers can be violated: (1) if one branch encroaches upon or nullifies the powers of another; or (2) if one branch improperly delegates its own, or another branch’s, constitutionally assigned authority to a separate branch of government. Chiles v. Children, 589 So. 2d 260, 264 (Fla. 1991).

To determine whether a given power is exclusive to one branch, one must consider the constitutional text and history, along with the nature of the activity in question. Simms v. State, 641 So. 2d 957, 961 (Fla. 3d DCA 1994).

The legislature is constitutionally prohibited from assigning its own exclusively held power to other branches through excessive delegation. See Askew v. Cross Key Waterways, 372 So. 2d 913, 918-19 (Fla. 1978). To be sure, legislatures may, and routinely do, delegate authority to the executive branch to administer a statutory scheme; in so doing they often times provide to the relevant agency a measure of discretion to flesh out the underlying law’s contours. Id. at 924. To pass constitutional muster,
however, such authority may not be utterly open-ended and must provide “some minimal standards and guidelines ascertainable by reference to the [underlying] enactment.” Id . at 925. In short, the executive official must be given guidance as to the intention of the act itself, so as not to cede the “discretion as to What the law shall be,” which, of course, is the province of the legislature alone. Conner v. Joe Hatton, Inc., 216 So. 2d 209, 211 (Fla. 1968).

Does the Dissolution of Marriage statute and its alimony provisions vest in the judiciary powers that are exclusively reposed in the legislative branch? Yes. To answer the question, one must “consider the essential nature and effect of the governmental activity to be performed.” Simms 641 So. 2d at 961. In fact, Art. I. § 23, Fla. Const, Right of Privacy, prevents any branch of government from imposing undue burdens on the right of privacy of citizens to dissolve their Marriage. Littlejohn v. Rose 786 F.2d 785, 786 (6th Cir. 1985) (Given the "associational interests that surround the establishment and dissolution of [the marital] relationship", such "adjustments" as divorce and separation are naturally included within the umbrella of protection accorded to the right of privacy.).

N. Fla.. Women’s Health 866 So.2d at 658,
“As has so often been said, it is not the role of the courts to set policy or to engage in judicial legislation. We have long recognized that it is not this Court's ‘function to substitute its judgment for that of the Legislature as to the wisdom or policy of a particular statute.’ State v. Rife, 789 So. 2d 288, 292 (Fla. 2001). However, this Court does not ‘violate the separation of powers doctrine by determining whether a legislative enactment was constitutionally adopted.’ Chiles v. Phelps, 714 So. 2d 453, 456 (Fla. 1998).”

INTERESTING READING:
* National Center On Children In Poverty - A rapidly changing portrait of fatherhood in America and how the states are responding to it. There are interesting statistics relating to the change in family structure.
* Divorce And Child Support Are Eviscerating Military Recruitment

LEGAL INFORMATION AND RESEARCH CORNER:
* State Constitutions

EXAMPLES OF A JUDICIAL SYSTEM GONE AWRY:
* Judicial Conduct Commission Targets Contempt Abuse
* Beware: The Dog Law. Just when you thought you had a reason not to be held in contempt, they ignore the reason of law and change the rules.

WOMEN RULE: MORE ON THE SUBJECT:
* Gender propaganda couched as fact or science is the traditional method radical feminist organizations have used for decades to seize control of family and the trappings of society.

HOW THINGS ARE HANDLED IN OTHER COUNTRIES:
* Italy: Ciao, dear: party time is legal right

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