Stetson Law Review

Certiorari relief is only granted if a lower court has violated a “clearly established principle of law,” understood by Florida courts to mean binding and on-target caselaw governing that lower court’s decision. This Article examines the clearly-established-law requirement, finding that it obstructs Florida appellate courts from developing caselaw for issues of first impression and those issues first decided outside the reviewing district. This requirement often results in appellate courts denying relief without analyzing cases’ merits and being bound to other districts’ precedent.

This Article discusses existing responses to the requirement, examining how Florida courts have avoided it by looking to constitutional provisions, statutes, and rules; expanding upon current caselaw; and certifying questions to higher courts. The Article then proposes an alternate solution stemming from prospective adjudication—”sunbursting”—which allows courts to rule on legal issues without applying those rules to parties. Under this approach, courts would both maintain the clearly-established-law requirement and provide for caselaw development in a two-step process: (1) determine whether a lower court violated established law (granting or denying relief); and (2) analyze and rule on each issue raised.

Under Florida law, the circuit courts and the district courts of appeal engage in a limited judicial review of state agency decisions, particularly of local zoning boards, because the courts defer to an agency’s expertise. There is, however, substantial confusion surrounding the scope of the limited review of local zoning board decisions, which makes it difficult-for courts to determine if a state agency has abused its discretion, made erroneous findings of fact, or misapplied the law. Under the current system of certiorari review, a single judge in the circuit court may have too much discretion to review state agency decisions, while a district court of appeal may have too little discretion to determine if there is an error, thus potentially depriving property owners of their rights or interfering with the exercise of legitimate state police power. The Authors urge that certiorari review does not give either property owners or the government, both of which have significant rights at stake, an appeal that would satisfy their constitutional right to such review. The Authors further suggest that society should revisit the issue of judicial review of state agency decisions to afford the parties their constitutional right to review.

Though the remedy of certiorari has existed for centuries in the United States and the United Kingdom, the French system is fairly modern. The formal certiorari process was not even available in France until the 2008 constitutional reforms, which did not go into effect until 2010. In this Article, the Authors trace the development of the remedy of certiorari in the United States and France in an effort to draw conclusions on how the remedy and its use are similar and different under the two systems.

While this Article points out many fundamental differences that still exist between the two systems, it nevertheless proposes that the 2008 constitutional reforms in France have brought the French certiorari model closer to the United States’ model. As a result of these comparisons, this Article provides valuable insight into the development of the remedy of certiorari in both the United States and France, as well as an examination of the similarities and differences between the two systems.

The Supreme Court recently reviewed the Ninth Circuit’s decision in United States v. Alvarez and held the Stolen Valor Act (SVA) to be facially unconstitutional. There was no intent requirement or harm requirement under the plain language of the statute, and therefore the SVA made words, and words alone, criminal. This Article argues that the Supreme Court properly overturned the SVA because the statute violated fundamental First Amendment values and significantly departed from previous, appropriate legislation regulating truth and falsity. Historically, there have been limited categories of speech that are exempt from First Amendment protection, but false speech is not one of them. The plurality in Alvarez noted the sheer breadth of the SVA to cover all false statements made at any time, in any place, to any person. The SVA was subject to strict scrutiny, and ultimately, the plurality found that the government failed to carry its burden to prove a causal link between a negative public perception of military award and lies about military valor. This Article also discusses three examples of the Supreme Court’s willingness to strike down other laws that serve an admirable purpose but appear to threaten First Amendment rights. In conclusion, this Article proposes both public and private alternatives to the SVA.

This Article analyzes the Florida Supreme Court decision in State v. Adkins, 96 So. 3d 412 (Fla. 2012), and how each justice decided the issue. The Court set out to definitively decide a controversial issue involving Section 893.13 of the Florida Statutes, a law that arguably made drug possession a strict liability offense. However, no majority was reached; the Court was split into a three-justice plurality, with two concurrences and two dissents. A professor at heart, Batey analyzes the approach each justice took in reaching a decision and assigns them all grades based on the legal deduction, reasoning, and justification found in each opinion. Arguing that no real conclusion was reached to this difficult legal issue, Professor Batey explores the shortcomings in each justice’s interpretation of the law and how the issue should have been decided given each justice’s prior history and ideological views, as well as by the precedent set by the Court itself.

The First Amendment protects private discourse and individual contribution to the marketplace of ideas; it also limits the government’s ability to impose religious views on its citizenry, while promising to guard the peoples’ rights to practice the religion of their choice. These fundamental rights are focal points for extensive and controversial religious speech jurisprudence. The extent of these speech rights depends predominantly on who the relevant speaker is: the government may regulate its own speech but is hamstrung from endorsing religion, while private speech enjoys expansive constitutional protection and is not limited by the Establishment Clause. Identifying the speaker can sometimes be a difficult endeavor, however; one such example is of utmost concern to a large, yet distinct, subset of the population-public school students.

Accordingly, this Article focuses on student religious speech in public schools and the First Amendment’s protection thereof. This inquiry is informed by student speech jurisprudence, the axiomatic prohibition against viewpoint discrimination, and government avoidance of Establishment Clause violations. This complicated and oftentimes contradictory caselaw is troubling in its own right, yet is circumscribed even further by another major concern that inhibits students’ free speech rights-qualified immunity.

Qualified immunity protects government officials from civil liability under certain circumstances. This defense does not, however, protect a government official who infringes on a student’s (1) “clearly established” (2) “constitutional rights.” This two-prong test is meant to protect government officials’ reasonable discretionary actions. Of some concern, however, the Supreme Court has generally advised lower courts to reach the “clearly established” prong before the “constitutional violation” prong. This declaration has the potential to create a perverse institutional problem in the realm of student religious speech, where the law is threatened with a perpetual cycle of dismissal on qualified immunity grounds without a forum for establishing clear law to guide government officials and to protect students’ First Amendment rights.

This Article addresses how the neutrality principle has evolved over the course of a century and how this gradual evolution ultimately yielded a more relaxed definition of neutrality. More specifically, it explores the complex institutional interplay between government and religion to contend and find that the Supreme Court has come to abandon its traditionally restrictive approach to church-state cooperation in favor of a more permissive norm. Toward this end, it traces the development of the neutrality principle by reviewing the relevant case law and discussing the insights and reservations expressed by Supreme Court Justices on the use of public funds for sectarian purposes. Two basic conclusions appear to emerge from this framework of analysis. One is that the Court has traditionally interpreted the Establishment Clause in a highly strict and forceful manner to forbid the government from providing even nonpreferential aid to religion. The second is that the Court has all but rejected as unduly restrictive the 1971 Lemon Test to allow for a wider scope of government aid to sectarian bodies under the Establishment Clause.

After the Great Recession, many American consumers still find themselves deep in debt. Not surprisingly, the debt-collection market has grown into a billion-dollar industry. In Florida, creditors and collectors’ debt-collection activities are subject to the State’s consumer-protection statute, the Florida Consumer Collection Practices Act (FCCPA), which creates a barrier between collectors and debtors by prohibiting contact between them, including via billing statements, while a debt is in collection if the debtor is represented by counsel. An independent federal law, the Truth in Lending Act (TILA) also applies to certain debt collection activities, and it requires creditors to send certain disclosures on period billing statements to the consumer. The TILA does not create an exception for debtors represented by counsel. If these laws are determined to be in conflict, the Florida protective statute would be preempted. While Florida courts have not yet decided this issue, the Author proposes that the TILA can be harmonized with the FCCPA through an interpretation of the TILA that would allow creditors to comply with both the federal and state law. This interpretation is based on caselaw, federal authorities, and public policy, and the Author concludes that this harmonious interpretation is required for the laws to function as both were intended-to protect consumers.

Widespread deterioration of coral reef ecosystems continues despite federal and state efforts to protect these valuable natural resources. This damage must be prevented not only for the sake of the reefs themselves, but also for the sake of humanity, which benefits from fishery sustainability, erosion prevention, recreation, and other vital services that reefs provide. After a brief review of the current federal and state programs that provide coral reef protection and an analysis of some “gaps” in reef protection, this Article suggests that the State of Florida has the ability to fill many of the gaps in protection. The Author proposes extending Florida’s common law public trust doctrine to include coral reefs and argues that such an extension would empower Floridians to enforce a State duty to protect corals.

Under the public trust doctrine, the State has an affirmative duty to manage its public trust resources in the best interest of its citizens. The Author explains that Florida, as a trustee under the doctrine, is required to consider the impact of its actions on public trust resources and prevent substantial harm to the resources. Floridians, as the trust beneficiaries, have the right to ensure that the State acts with care in its trustee responsibilities. The Author suggests that if the public trust doctrine’s scope extended to include corals, the keystones of coral reef ecosystems, Floridians could then enforce a State duty to protect coral reefs within State waters.

Although a public trust in corals could be established through statutory codification or common law means, this Article proposes expanding the doctrine’s application to corals through the common law. Because Florida’s common law public trust doctrine is deeply rooted in the concept of protecting public uses such as fishing and recreation, the Author argues that the doctrine could extend to include coral resources because of the services they provide to the public. Further, the Author suggests that because corals are so intimately connected to submerged lands, which are traditional subjects of public trust protections, this type of public trust expansion to wildlife may be more successful than previous attempts across the United States.

Finally, the Article presents a brief overview of the form of a public trust lawsuit to enforce State coral reef protection and addresses a few concerns with using the doctrine to enforce State protection of corals. The Author concludes by advocating for a reform of Florida’s public trust doctrine to include corals and an increase in State protection of valuable reef resources.