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Tiff shows key in these powers is separation

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By HOWARD TROXLER

© St. Petersburg Times, published April 6, 2001


You gotta love a good constitutional arm-wrestle now and then.

A bizarre event this week brought into play the Florida Constitution, two colliding branches of our state government, and if you take the long view, 500 years of English common law.

Here's the gist:

A local judge in Tallahassee ordered the Legislature not to hold a particular committee meeting. The Legislature held the meeting Tuesday anyway. Some of the members even gave each other "jail uniforms" as a joke for defying the court order.

Nobody's been thrown in jail yet for contempt of court, but who knows?

How could a judge issue such an order? The stated reason was that labor talks with state employees had reached a point under the law for a "cooling off" period of 20 days.

Circuit Judge L. Ralph Smith ruled that "irreparable harm" would occur if the Legislature interfered by holding any meetings on the topic during the cooling-off period. So he signed an order instructing the Legislature to ...

* * *

... cancel any meeting, hearing, or conference now scheduled for April 3, 2001, or to be scheduled later ...

* * *

This is strong stuff, constitutionally speaking. Can a judge really order the Florida Legislature not to meet to discuss a particular topic?

There are hundreds of circuit judges in Florida hearing thousands of cases every day. What if they all thought they could issue orders telling the Legislature what it could and couldn't do?

Sure, the law calls for a cooling-off period between labor and management. You and I as private citizens would have to obey it. But is there any law on the books that can take away the power of an elected Legislature to meet?

In this case, the Legislature decided that it was protected by the old doctrine of "separation of powers." That means that one branch of Florida's government can't interfere with the unique functions of the other two.

For example, the Legislature could never pass a law declaring somebody to be guilty or innocent. Only the courts can decide that. The governor could never write his own state budget. That's the sole power of the Legislature.

Here, the Legislature decided, the judge was interfering with the sole power of the legislative branch to control its own business.

Tom Feeney, the speaker of the state House, told me Thursday that the Legislature's lawyers could not find any U.S. legal precedent to guide them. So we have to look to English common law.

"This is the first judge, to anybody's knowledge, to try to do what the English kings used to try to do to Parliament," he said.

A case from 1513 established that the business of Parliament was not subject to the orders of lower courts.

An incident colorfully named the "Protestation of 1621" established the sole power of Parliament to decide which topics it would take up.

Yet another precedent from 1647, the "Grand Remonstrance" (why don't they use names like this in Tallahassee?), established that Parliament was not answerable to the king or the courts for its agenda.

When the king summoned the speaker of the House of Commons and demanded answers, the speaker of that chamber replied: "May it please your majesty, I have neither eyes to see, nor tongue to speak in this place, but as the House is pleased to direct me."

To be sure, the Florida Legislature is no friend of the courts this year. It is considering several questionable ideas to weaken the judicial branch. But anyone who would defend the courts against the Legislature should be equally willing to defend the Legislature against the courts.

- You can reach Howard Troxler at (727) 893-8505 or at troxler@sptimes.com.

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