Tuesday, November 29, 2005

Separation of Powers – Part 5

Where you find the laws most numerous, there you will find also the greatest injustice. --Arcesilaus

Legal Arguments:

2. Unbridled Authority Improperly Given to the Judiciary

A legislative delegation of power to another branch of government without proper standards and guidelines violates Florida's separation-of-powers prohibition because it permits the other branch the discretion to decide what the law shall be. See Askew 372 So.2d at 913; Conner 216 So. 2d. This concept is so fundamental and universally accepted that the Florida Supreme Court considers it "hornbook law." Lewis v. Bank of Pasco County, 346 So.2d 53 (Fla.1976).

The Florida Supreme Court Gender Bias Study Commission in their (1990) Report as an authoritative body acknowledges the judiciary is granted almost unlimited discretion to apply § 61.08 Fla. Stat. ( See infra G.)

The Separation of Powers test is noted in State v . Griffin, 239 So. 2d 577 (Fla. 1970),
“The test then became twofold: first, was a transfer of authority possible; second, if so, was it sufficiently restrictive? We quote from Bailey v. Van Pelt, 78 Fla. 337, 82 So. 789 (1919):

‘In order to justify the courts in declaring invalid as a delegation of legislative power a statute conferring particular duties or authority upon administrative officers it must clearly appear beyond a reasonable doubt that the duty or authority so conferred is a power that appertains exclusively to the legislative department, and the conferring of it is not warranted by the provisions of the Constitution.

‘The Legislature may not delegate the power to enact a law, or to declare what the law shall be, or to exercise an unrestricted discretion in applying a law; but it may enact a law complete in itself, designed to accomplish a general purpose, and may expressly authorize designated officials within valid limitations to provide rules for the complete operation and enforcement of the law within its expressed general purpose.’”
Smith v. Portante, 212 So.2d 298, 299 (Fla.1968) (cited in Schiavo v. Bush, No. 03-008212-CI-20, 6th Judicial Circuit Florida, (2004))states,
“A statute which delegates power to the executive [here we argue to the judiciary] must so clearly define that power that the executive [judiciary] is precluded from acting through whim, showing favoritism, or exercising unbridled discretion. Id at 56. ‘No matter how laudable a piece of legislation may be in the minds of its sponsors, objective guidelines and standards should appear expressly in the act or be within the realm of reasonable inference from the language of the act where a delegation of power is involved and especially so where the legislation contemplates a delegation of power to intrude into the privacy of citizens.’”
Standards and guidelines are also necessary to accommodate the right to judicial review.

A critical point demonstrating the alimony provisions violation of the separation of powers is the inability of the courts to determine the intent of the legislation. Whether the courts find the intent and provisions ambiguous or simply chose not to follow the myriad of factors in § 61.08 Fla. Stat. is unclear. The fact is they do not follow the factors. The alimony provisions fail the test outlined in Askew, 372 So.2d at 918,
"When legislation is so lacking in guidelines that neither the agency nor the courts can determine whether the agency [judiciary] is carrying out the intent of the Legislature in its conduct, then, in fact, the agency [judiciary] becomes the lawgiver rather than the administrator [interpreter] of the law."
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* Examiner Editorial - Another judge, another screw up. And, an example of gender bias against women.

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* Randall Couch