FREDDY D‘AGASTINO, et al., Petitioners, vs. THE CITY OF MIAMI, et al., Respondents.
No. SC16-645
Supreme Court of Florida
[June 22, 2017]
LEWIS, J.
The many and multiple complexities and conflicts generated in today‘s society have produced numerous difficulties inherent in the delivery of police work and services. The City of Miami, along with other governmental units, have responded to some of those difficulties inherent in modern police work by creating citizen review and investigative panels. The present case has been generated by the creation of and powers given to a group known as the City of Miami Civilian Investigative Panel (CIP), which is an independent body designed to investigate and review instances of alleged police misconduct, and review police policies and procedures, with the ultimate goal of making recommendations to the relevant law enforcement agency. Today we consider a challenge to some of the CIP‘s authority, in which Lieutenant Freddy D‘Agastino and the Fraternal Order of Police seek review of the decision of the Third District Court of Appeal in D‘Agastino v. City of Miami, 189 So. 3d 236 (Fla. 3d DCA 2016), on the basis that it expressly and directly conflicts with a decision of the Fifth District Court of Appeal in Demings v. Orange County Citizens Review Board, 15 So. 3d 604 (Fla. 5th DCA 2009), on a question of law. The policy or wisdom of such investigative panels is not before us. Specifically, the only question before us involves the operative effect of the Police Officers’ Bill of Rights (PBR), codified in sections
FACTUAL, LEGAL, AND PROCEDURAL BACKGROUND
On March 5, 2009, a complaint was filed with the CIP against Lt. D‘Agastino for alleged misconduct that had occurred the day before during a traffic stop. The City of Miami Police Department‘s Internal Affairs Division (Internal Affairs) subsequently fully investigated the matter, interviewing under oath the complainant, Lt. D‘Agastino, and two other officers who were present during the traffic stop. On April 8, 2009, Internal Affairs mailed a letter to the complainant indicating that it had completed its investigation and that its findings were “inconclusive” as to the alleged misconduct “because insufficient evidence exists to prove or disprove the allegation.” Specifically, the Internal Affairs report indicated that there were no independent
On April 17, 2009, nine days after the letter indicating Internal Affairs had completed its investigation, the CIP issued a subpoena to Lt. D‘Agastino ordering him to appear before the CIP to testify. However, on May 22, 2009, Lt. D‘Agastino filed an action in the circuit court of the Eleventh Judicial Circuit alleging that the CIP as an investigative authority conflicts with a component of the PBR, section
The Police Officers’ Bill of Rights
We begin with the Police Officers’ Bill of Rights, codified in Part VI of Chapter 112 of the Florida Statutes. Most relevant here, section
(1)(a) Every law enforcement agency and correctional agency shall establish and put into operation a system for the receipt, investigation, and determination of complaints received by such agency from any person, which shall be the procedure for investigating a complaint against a law enforcement and correctional officer and for determining whether to proceed with disciplinary action or to file disciplinary charges, notwithstanding any other law or ordinance to the contrary. When law enforcement or correctional agency personnel assigned the responsibility of investigating the complaint prepare an investigative report or summary, regardless of form, the person preparing the report shall, at the time the report is completed:
- Verify pursuant to
s. 92.525 that the contents of the report are true and accurate based upon the person‘s personal knowledge, information, and belief.- Include the following statement, sworn and subscribed to pursuant to
s. 92.525 :“I, the undersigned, do hereby swear, under penalty of perjury, that, to the best of my personal knowledge, information, and belief, I have not knowingly or willfully deprived, or allowed another to deprive, the subject of the investigation of any of the rights contained in ss.
112.532 and112.533 , Florida Statutes.”The requirements of subparagraphs 1. and 2. shall be completed prior to the determination as to whether to proceed with disciplinary action or to file disciplinary charges. This subsection does not preclude the Criminal Justice Standards and Training Commission from exercising its authority under chapter 943.
(b)1. Any political subdivision that initiates or receives a complaint against a law enforcement officer or correctional officer must within 5 business days forward the complaint to the employing agency of the officer who is the subject of the complaint for review or investigation. 2. For purposes of this paragraph, the term “political subdivision” means a separate agency or unit of local government created or established by law or ordinance and the officers thereof and includes, but is not limited to, an authority, board, branch, bureau, city, commission, consolidated government, county, department, district, institution, metropolitan government, municipality, office, officer, public corporation, town, or village.
Immediately preceding is section
The first set of rights and privileges are those “Rights of Law Enforcement Officers and Correctional Officers While Under Investigation,” enumerated in subsection
Whenever a law enforcement officer or correctional officer is under investigation and subject to interrogation by members of his or her agency for any reason which could lead to disciplinary action, demotion, or dismissal, such interrogation shall be conducted under the following conditions:
(a) The interrogation shall be conducted at a reasonable hour, preferably at a time when the law enforcement officer or correctional officer is on duty, unless the seriousness of the investigation is of such a degree that immediate action is required.
(b) The interrogation shall take place either at the office of the command of the investigating officer or at the office of the local precinct, police unit, or correctional unit in which the incident allegedly occurred, as designated by the investigating officer or agency.
(c) The law enforcement officer or correctional officer under investigation shall be informed of the rank, name, and command of the officer in charge of the investigation, the interrogating officer, and all persons present during the interrogation. All questions directed to the officer under interrogation shall be asked by or through one interrogator during any one investigative interrogation, unless specifically waived by the officer under investigation.
(d) The law enforcement officer or correctional officer under investigation shall be informed of the nature of the
investigation prior to any interrogation, and he or she shall be informed of the names of all complainants. All identifiable witnesses shall be interviewed, whenever possible, prior to the beginning of the investigative interview of the accused officer. The complaint and all witness statements shall be provided to the officer who is the subject of the complaint prior to the beginning of any investigative interview of that officer. An officer, after being informed of the right to review witness statements, may voluntarily waive the provisions of this paragraph and provide a voluntary statement at any time. (e) Interrogating sessions shall be for reasonable periods and shall be timed to allow for such personal necessities and rest periods as are reasonably necessary.
(f) The law enforcement officer or correctional officer under interrogation shall not be subjected to offensive language or be threatened with transfer, dismissal, or disciplinary action. No promise or reward shall be made as an inducement to answer any questions.
(g) The formal interrogation of a law enforcement officer or correctional officer, including all recess periods, shall be recorded on audio tape, or otherwise preserved in such a manner as to allow a transcript to be prepared, and there shall be no unrecorded questions or statements. Upon the request of the interrogated officer, a copy of any such recording of the interrogation session must be made available to the interrogated officer no later than 72 hours, excluding holidays and weekends, following said interrogation.
(h) If the law enforcement officer or correctional officer under interrogation is under arrest, or is likely to be placed under arrest as a result of the interrogation, he or she shall be completely informed of all his or her rights prior to the commencement of the interrogation.
(i) At the request of any law enforcement officer or correctional officer under investigation, he or she shall have the right to be represented by counsel or any other representative of his or her choice, who shall be present at all times during such interrogation
whenever the interrogation relates to the officer‘s continued fitness for law enforcement or correctional service.
(j) Notwithstanding the rights and privileges provided by this part, this part does not limit the right of an agency to discipline or to pursue criminal charges against an officer.
Section
- Significant new evidence has been discovered that is likely to affect the outcome of the investigation.
- The evidence could not have reasonably been discovered in the normal
course of investigation or the evidence resulted from the predisciplinary response of the officer.
Relevant City of Miami Charter and Code Provisions
The CIP‘s history began with Section 51 of the Miami Charter which authorized the city commission to create a CIP “to act as independent citizens’ oversight of the sworn police department.” Miami, Fla., Charter § 51 (2012). In relevant part, the CIP is authorized to “(1) conduct independent investigations of police misconduct,” and “(3) make recommendations to the city manager and/or directly to the police chief, to which a timely written response shall be received within 30 days.” Id.
Directly challenged by Lt. D‘Agastino here, the enabling ordinances empower the CIP to execute subpoenas for investigation of allegations of police misconduct:
Sec. 11.5-32. - Subpoena power.
(a) The CIP may subpoena witnesses and documents when conducting an independent investigation of allegations of police misconduct as follows:
(1) A request for a subpoena must be presented to and reviewed by the CIP independent counsel;
(2) The CIP independent counsel may deny or approve the request after consulting with the state attorney‘s office;
(3) If approved by the CIP independent counsel, the CIP may issue the subpoena with an affirmative vote of seven of its members.
(b) The subpoena shall be valid only within the jurisdictional limits of the city. However, the CIP may seek enforcement and extraterritorial domestication of its subpoenas in accordance with general law.
§ 11.5-32, Miami, Fla., Code ch. 11, art. II, § 11.5-32 (2012). The ordinances also list several procedures to be followed in connection with such subpoenas:
Sec. 11.5-33. - Procedures related to city employees and witnesses.
(a) When a city employee appears before the CIP in response to a subpoena, such employee shall be formally advised prior to the commencement of testimony that if the employee has a good-faith belief that the testimony would tend to be self-incriminating, and if, in reliance upon that good-faith belief, the employee declines to answer any question, that the employee‘s decision not to provide testimony will not subject him or her to any adverse employment consequences. Any employee who, after receiving such advice, decides to testify or provide evidence, must sign a statement acknowledging that the employee understands the advice and is testifying or providing evidence voluntarily and knowingly.
(b) A police officer who is the subject of an investigation shall be informed of the nature of the investigation and provided with a copy of the complaint prior to being interrogated.
(c) A person who appears before the CIP in response to a CIP request for testimony may be represented by counsel
or any other representative of his or her choice, which representative may be present at all times during the subject‘s appearance before the CIP. (d) The CIP may hold evidentiary hearings requiring witnesses in the manner set forth in section 11.5-30. Only the subject of the complaint, witnesses, their attorneys or representatives and CIP members may participate in evidentiary hearings.
(e) Policies and procedures shall be established to ensure compliance with Chapters 112 and 119 of the Florida Statutes and any other applicable laws.5
Id. at § 11.5-33, Miami, Fla., Code. Also relevant here, a two-way comingling interaction between the CIP and the City of Miami Police Department is prominently featured in the local ordinances. For one, “the police department shall be notified of complaints received by the CIP within two working days.” § 11.5-31(1)b. Additionally, “[a]t the conclusion of the internal affairs investigation, the internal affairs report prepared for the Chief of Police shall be transmitted to the CIP within three working days.” Id. at § 11.5-31(2)(b), Miami, Fla., Code. Continuing the two-way comingling interaction, the CIP‘s ultimate findings and conclusions are forwarded to the Chief who must then respond within thirty days:
At the conclusion of its review or investigation the CIP shall forward its written findings and conclusions to the chief of police and to affected officers and, to the extent permitted by law, to the complainants to which a timely written response shall be received from the chief of police within 30 days.
§ 11.5-31(5), Miami, Fla., Code. Furthermore, after reviewing an Internal Affairs report, the code provisions grant the CIP five options, three of which involve interacting directly with the police department:
- Request that the chief of police conduct further investigation, or
- Obtain further case-specific information from the chief of police, including written materials, audio or video tapes, and related documents, or
- Conduct an independent investigation, such investigation to be concluded within 120 days, or
- Notice and hold a hearing to gather evidence, or
- Report its written findings and conclusions to the city manager and/or the chief of police;
§ 11.5-31(2)(c)1.-5., Miami, Fla., Code.
Legal Analysis in Decision Below and Relevant Legal Analysis of the Conflict Case
With that background law, the analysis of the decision below can be properly understood. To begin, the decision below held that the CIP did not conflict in any way with section
Similarly, the Fifth District in Demings considered whether the Orange County Citizen‘s Review Board (CRB) had the power to compel deputies of the Orange County Sheriff to appear and testify in CRB investigations by subpoena. 15 So. 3d at 610. However, in conflict with the decision below, the Demings court did not find that the CRB was reconcilable with section
The dissent in the decision below agreed with Demings. See D‘Agastino, 189 So. 3d at 247-48 (Rothenberg, J., dissenting). The dissent was of the view that express preemption applied. Id. at 248 (Rothenberg, J., dissenting). In addition to
the reasoning offered in Demings, the dissent in the decision below concluded that the CIP impermissibly creates an exception to the statutory scheme of the PBR. See id. (Rothenberg, J. dissenting) (citing City of Palm Bay v. Wells Fargo Bank N.A., 114 So. 3d 924 (Fla. 2013)). Specifically, the dissent noted that the PBR contains an exception for the Criminal Justice Standards and Training Commission (CJSTC) and authorizes criminal investigations conducted by the State Attorney‘s Office, state and federal grand juries, state and federal courts, the Florida Department of Law Enforcement, the Federal Bureau of Investigation, and the United States Department of Justice. Id. at 248 (Rothenberg, J., dissenting). Thus, noting that citizen review and investigatory panels are conspicuously missing from those exceptions, the dissent concluded they are preempted and unconstitutional. Id. at 250 (Rothenberg, J., dissenting) (citing City of Palm Bay, 114 So. 3d at 929 (“Fundamental to the
We resolve the conflict between Demings and the decision below.
ANALYSIS
In Florida, the power of a municipal government to legislate is derived from both constitutional provisions and statute. Generally speaking, the Florida Constitution authorizes and empowers municipalities to exist and conduct municipal powers except as otherwise provided by law:
(b) POWERS. Municipalities shall have governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services, and may exercise any power for municipal purposes except as otherwise provided by law. Each municipal legislative body shall be elective.
Acting on its constitutional authority to address municipal powers, the Legislature clarified the powers of municipal government by enacting the Municipal Home Rule Powers Act, which is now codified in section
166.021 Powers.--
(1) As provided in s. 2(b), Art. VIII of the State Constitution, municipalities shall have the governmental, corporate, and proprietary powers to enable them to conduct municipal government, perform municipal functions, and render municipal services, and may exercise any power for municipal purposes, except when expressly prohibited by law.
(3) The Legislature recognizes that pursuant to the grant of power set forth in s. 2(b), Art. VIII of the State Constitution, the legislative body of each municipality has the power to enact legislation concerning any subject matter upon which the state Legislature may act, except:
(a) The subjects of annexation, merger, and exercise of extraterritorial power, which require general or special law pursuant to s. 2(c), Art. VIII of the State Constitution;
(b) Any subject expressly prohibited by the constitution;
(c) Any subject expressly preempted to state or county government by the constitution or by general law; and
(d) Any subject preempted to a county pursuant to a county charter adopted under the authority of ss. 1(g), 3, and 6(e), Art. VIII of the State Constitution.
Against this backdrop, in Sarasota Alliance for Fair Elections, Inc. v. Browning, 28 So. 3d 880, 885-86 (Fla. 2010), we discussed the manner in which a local government enactment may be inconsistent with state law. Relevant here, a local government enactment may be inconsistent with state law where the Legislature has preempted a particular subject
object sought to be attained by the statute at issue, and the character of the obligations imposed by the statute are all vital to this determination.” Id. (citing Harden, 938 So. 2d at 486).
However, we must be careful and mindful in attempting to impute intent to the Legislature to preclude a local elected governing body from exercising its home rule powers. Tallahassee Mem‘l Reg‘l Med. Ctr., Inc. v. Tallahassee Med. Ctr., Inc., 681 So. 2d 826, 831 (Fla. 1st DCA 1996). Nevertheless, as we reemphasized in City of Palm Bay, because the Legislature is ultimately superior to local government under the Florida Constitution, preemption can arise even where there is no specifically preclusive language. 114 So. 3d at 928 (“But we have never interpreted either the constitutional or statutory provisions relating to the legislative preemption of municipal home rule powers to require that the Legislature specifically state that the exercise of municipal power on a particular subject is precluded.“). We further reaffirmed in City of Palm Bay that the language “except as otherwise provided by law” contained in the constitutional provision “establishes the constitutional superiority of the Legislature‘s power over municipal power.” Id.
In sum, under this framework, “[l]egislative statutes are relevant only to determine limitations of authority.” City of Boca Raton v. State, 595 So. 2d 25, 28 (Fla. 1992) (quoting State v. City of Sunrise, 354 So. 2d 1206, 1209 (Fla. 1978)).
Finally, we review questions of preemption and the validity of an ordinance de novo. City of Hollywood v. Mulligan, 934 So. 2d 1238, 1241 (Fla. 2006).
Lt. D‘Agastino contends that the PBR expressly preempts the CIP. According to Lt. D‘Agastino, the Legislature employed such explicit preemption of the investigation of all complaints against law enforcement officers through the first sentence of section
Every law enforcement agency and correctional agency shall establish and put into operation a system for the receipt, investigation, and determination of complaints received by such agency from any person, which shall be the procedure for investigating a complaint against a law enforcement and correctional officer and for determining whether to proceed with disciplinary action or to file disciplinary charges, notwithstanding any other law or ordinance to the contrary.
Although one might fairly read that plain language as evincing intent for the exclusivity of investigation of police complaints, it simply does not convey preemption with the sufficient explicit language and clarity of intent that courts have traditionally found necessary to be “express preemption” statutes in the past cases. The fact remains that a finding of express preemption—that the Legislature has specifically expressed its intent to preempt a subject through an explicit
statement—is a very high threshold to meet. See Masone v. City of Aventura, 147 So. 3d 492, 495-97 (Fla. 2014) (express preemption found in language “no local authority shall enact or enforce any ordinance on a matter covered by this chapter unless expressly authorized” (quoting
Lt. D‘Agastino further contends that two other sentences in
Any political subdivision that initiates or receives a complaint against a law enforcement officer or correctional officer must within 5 business days forward the complaint to the employing agency of the officer who is the subject of the complaint for review or investigation.
Lt. D‘Agastino‘s contentions with regard to these two additional provisions are not without some merit and certainly provide some support for his contention that the Legislature, through
However, as we have explained, Florida law also recognizes implied preemption. Although implied preemption involving a municipality‘s home rule powers may be disfavored, we must carefully consider the intent of the Legislature with regard to preemptive operation even though it may not be expressly stated. As with his express preemption argument, Lt. D‘Agastino contends that the Legislature has intended to preempt the investigation of all complaints against law enforcement officers by requiring that they only be investigated by the employing law enforcement agency. Although we agree with Lt. D‘Agastino that
The question of implied preemption contained in
Moreover, the amendment history of
(1) Every law enforcement agency and correctional agency shall establish and put into operation a system for the receipt, investigation, and determination of complaints received by such agency from any person.
(1) Every law enforcement agency and correctional agency shall establish and put into operation a system for the receipt, investigation, and determination of complaints received by such agency from any person, which shall be the procedure for investigating a complaint against a law enforcement and correctional officer and for determining whether to proceed with disciplinary action or to file disciplinary charges, notwithstanding any other law or ordinance to the contrary. This subsection does not preclude the Criminal Justice Standards and Training Commission from exercising its authority under chapter 943.
Ch. 2003-149, §2, at 3, Laws of Fla. The preemptive force in this new language is
As further indication of its attempt to funnel investigations of misconduct by police to the employing agency, in 2007, the Legislature amended
(1)(a) Every law enforcement agency and correctional agency shall establish and put into operation a system for the receipt, investigation, and determination of complaints received by such agency from any person, which shall be the procedure for investigating a complaint against a law enforcement and correctional officer and for determining whether to proceed with disciplinary action or to file disciplinary charges, notwithstanding any other law or ordinance to the contrary. This subsection does not preclude the Criminal Justice Standards and Training Commission from exercising its authority under chapter 943.
(b)1. Any political subdivision that initiates or receives a complaint against a law enforcement officer or correctional officer must within 5 business days forward the complaint to the employing agency of the officer who is the subject of the complaint for review or investigation.
2. For purposes of this subparagraph, the term “political subdivision” means a separate agency or unit of local government created or established by law or ordinance and the officers thereof and includes, but is not limited to, an authority, board, branch, bureau, city, commission, consolidated government, county, department, district, institution, metropolitan government, municipality, office, officer, public corporation, town, or village.
Ch. 2007-110, §2, at 2-3, Laws of Fla.
The CIP would have us end our inquiry here because it embraces the view of the decision below that the CIP lacks any managerial or disciplinary authority because it merely makes recommendations. Thus, the CIP contends that it does not in any way interact with the field preempted by the PBR. We disagree.
A core component of the disciplinary investigations conducted by law enforcement agencies arising from a complaint of alleged misconduct is the ability to interrogate the subject officer. However, law enforcement agencies cannot interrogate an officer by any means but must comply with the elaborate interrogation framework of rights and obligations imposed by the Legislature in the PBR. See
As a result, we cannot reconcile the CIP‘s subpoena power—as it pertains to the officer under investigation—with the PBR. Any holding otherwise would render the rights conferred upon officers by the PBR meaningless because the CIP provides the police department with a mechanism to circumvent the operation of the PBR‘s protective measures, ultimately rendering the PBR an initial investigatory protection facade. Thus, to uphold the CIP‘s authority to issue subpoenas to officers in connection with investigations of their conduct would impermissibly countermand the rights conferred by the PBR upon the officer. See City of Miami Beach v. Rocio Corp., 404 So. 2d 1066, 1070 (Fla. 3d DCA 1981) (“An ordinance which supplements a statute‘s restriction of rights may coexist with that statute . . . whereas an ordinance which countermands rights provided by statute must fail.” (citations omitted)). Indeed, the power to issue a subpoena to a citizen and to enforce it with the power of contempt is among the most powerful tools a government may wield. Moreover, if we were to hold otherwise, nothing would preclude the formation of other bodies similar to the CIP by other governmental units with concurrent geographical jurisdiction over an officer, all empowered with subpoena power and potentially subjecting an officer to repeated governmental pressure over an extended time, rendering the limitations provision in the PBR meaningless.
We therefore hold that the CIP‘s invocation of its subpoena power as applied to police officers is unconstitutional because compelled interrogation of police officers in investigations that could lead to their discipline is preempted by the PBR. When confronted with an ordinance enacted pursuant to home rule authority that operates in an unconstitutional manner, we have a duty to construe the ordinance in a manner that maintains its constitutionality, if possible. See Rinker Materials Corp. v. City of N. Miami, 286 So. 2d 552, 553 (Fla. 1973) (“Statutes or ordinances should be given that interpretation which renders the ordinance valid and constitutional.“). Here, we need not sever the provisions granting the subpoena power to ensure the CIP acts constitutionally. Instead, we find section 11.5-27(2) of the Miami Code of Ordinances is an adequate means of ensuring the subpoena power, as it applies to non-officers, may continue to exist undisturbed: “The purpose, powers, and duties of the CIP are to: . . . (2) Exercise its
We therefore quash the decision below to the extent that it affirmed the trial court‘s order upholding the validity of the subpoena issued to Lt. D‘Agastino and denying Lt. D‘Agastino a protective order.
While we do not comment on the policy merits of more or less civilian oversight, we do recognize that law enforcement officers remain very much exposed to public scrutiny despite our holding that the subpoena power of the CIP is preempted. Specifically, officers, of course, remain subject to criminal investigations, investigations conducted by their own agency, the State Attorney, the FBI, and the United States Department of Justice. They are also subject to the disciplinary investigations conducted by their own internal affairs department and the CJSTC.
Further, to be clear, our holding today does not address any other functions of the CIP in its mission of acting as an “independent citizens’ oversight of the sworn police department.” Miami, Fla., Charter, § 51 (2012). For instance, internal affairs investigations become public record once they are complete or are no longer active.
For this reason, we also approve of the ultimate conclusion of the Third District in Dade County Police Benevolent Ass‘n that the Miami-Dade County OIG report was not implicitly preempted by the PBR. 154 So. 3d at 380. Consistent with our holding today, there “[n]o police officers were interviewed or subpoenaed.” Id. at 375. Instead, the OIG investigation “for the most part, consisted of an audit of the County‘s own records, as well as some records from the MDPD, [the private company allegedly giving benefits], and the U.S. Immigration and Customs Enforcement Agency, and a few interviews of State Department and American Airlines employees.” Id. This type of reliance on otherwise available information can easily be reconciled with the protections conferred upon police officers in the PBR.
Due to the limited challenges presented, the limited nature of our holding today, and the myriad of functions these varying non-law enforcement agency boards perform, we reemphasize that our holding does not preclude future challenges to other functions that might intrude on the field of disciplining officers, or specific cases, including future matters concerning the CIP. Specifically, our holding today is merely that the PBR preempts the authority of a political subdivision as defined in
CONCLUSION
We quash the decision below to the extent it affirmed the CIP‘s authority to issue a subpoena to Lt. D‘Agastino. We remand to the district court for further
It is so ordered.
LABARGA, C.J., and PARIENTE, QUINCE, CANADY, POLSTON, and LAWSON, JJ., concur. PARIENTE, J., concurs with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.
PARIENTE, J., concurring.
I concur because the majority opinion is narrowly written to find only one portion of the City of Miami Civilian Investigative Panel (CIP) ordinance preempted by the Legislature through the Police Officers’ Bill of Rights (PBR) (
Unquestionably,
As I previously explained, with the Home Rule Powers Act, the Legislature “intended for municipal governments to have the power to enact local legislation on the same subjects and to the same extent as the state government, except in narrow circumstances where the Legislature has preempted a specific area of law to the state or where the local law conflicts with state law.” Masone v. City of Aventura, 147 So. 3d 492, 503 (Fla. 2014) (Pariente, J., dissenting). Thus, I adhere to my view that our recent jurisprudence “unnecessarily broadens the Court‘s interpretation of legislative preemption, while, at the same time, limiting the home rule authority granted to municipal governments by the Florida Constitution.” Id. at 499 (Pariente, J., dissenting).
Although the Home Rule Powers Act would appear to require a specific statement by the Legislature indicating its intent to preempt local regulation in a certain field, this Court has determined that preemption also occurs where it is clear that the Legislature has preempted the field or topic through statutes. See majority op. at 18. While express preemption
In Florida, a municipality is given broad authority to enact ordinances under its municipal home rule powers.
Art. VIII, § 2(b), Fla. Const. ;§ 166.021(1) ,(3)(c) ,(4), Fla. Stat. (1999) . Under its broad home rule powers, a municipality may legislate concurrently with the Legislature on any subject which has not been expressly preempted to the State. Wyche v. State, 619 So. 2d 231, 237-38 (Fla. 1993) (citing City of Miami Beach v. Rocio Corp., 404 So. 2d 1066, 1069 (Fla. 3d DCA 1981)); see also Barragan v. City of Miami, 545 So. 2d 252, 254 (Fla. 1989) (stating that the municipal home rule powers act “limits cities from legislating on any subject expressly preempted to state government by general law“). “Preemption essentially takes a topic or a field in which local government might otherwise establish appropriate local laws and reserves that topic for regulation exclusively by the legislature.” Phantom of Clearwater, Inc. v. Pinellas County, 894 So. 2d 1011, 1018 (Fla. 2d DCA 2005). “Express pre-emption requires a specific statement; the pre-emption cannot be made by implication nor by inference.” Fla. League of Cities, Inc. v. Dep‘t of Ins. & Treasurer, 540 So. 2d 850, 856 (Fla. 1st DCA 1989) (quoting Bd. of Trs. v. Dulje, 453 So. 2d 177, 178 (Fla. 2d DCA 1984)); see also Phantom of Clearwater, Inc., 894 So. 2d at 1018 (“Express preemption . . . must be accomplished by clear language stating that intent.“); Edwards v. State, 422 So. 2d 84, 85 (Fla. 2d DCA 1982) (“An ‘express’ reference is one which is distinctly stated and not left to inference.“). However, “[t]he preemption need not be explicit so long as it is clear that the legislature has clearly preempted local regulation of the subject.” Barragan, 545 So. 2d at 254 (citing Tribune Co. v. Cannella, 458 So. 2d 1075 (Fla. 1984)).
City of Hollywood v. Mulligan, 934 So. 2d 1238, 1243 (Fla. 2006) (footnote omitted). Following the standard from Mulligan, the Third District determined that “the PBR does not purport to expressly preempt other investigative bodies or means of oversight” and therefore concluded that the CIP is not preempted by the PBR. D‘Agastino v. City of Miami, 189 So. 3d 236, 240, 243 (Fla. 3d DCA 2016).
Despite this Court‘s long-standing recognition of preemption by implication, it is clear to me that implied preemption should be construed narrowly to comport with the Home Rule Powers Act and the Florida Constitution. The test “is not whether the Legislature has expressly authorized municipal power, but whether such power has been expressly prohibited.” City of Palm Bay v. Wells Fargo Bank, N.A., 114 So. 3d 924, 929-30 (Fla. 2013) (Perry, J., dissenting); see City of Ocala v. Nye, 608 So. 2d 15, 17 (Fla. 1992). Thus, as the majority recognizes, courts should be “careful in imputing an intent on behalf of the Legislature to preclude a local elected governing body from exercising its home rule powers.” Tallahassee Mem‘l Reg‘l Med. Ctr., Inc. v. Tallahassee Med. Ctr., Inc., 681 So. 2d 826, 831 (Fla. 1st DCA 1996); see majority op. at 19.
We should primarily rely on the Legislature to express its preemptive intent, when applicable, as it has in various contexts since enacting the Home Rule Powers Act in 1973. See, e.g.,
Therefore, in this case, I agree that “compelled interrogation of police officers in investigations that could lead to their discipline is preempted by the PBR.” Majority op. at 31. However, I continue to urge courts to take an extremely narrow approach before concluding that a municipal ordinance is unconstitutional based on implied legislative preemption, by giving due consideration to the broad grant of authority to municipalities set forth in
Application for Review of the Decision of the District Court of Appeal – Direct Conflict of Decisions
Third District - Case No. 3D10-2704
(Miami-Dade County)
Robert C. Buschel and Eugene G. Gibbons of Buschel Gibbons, P.A., Fort Lauderdale, Florida; and Ronald J. Cohen of Rice Pugatch Robinson Storfer & Cohen PLLC, Fort Lauderdale, Florida,
for Petitioners
Victoria Mendez, City Attorney, and John A. Greco, Deputy City Attorney, Miami, Florida,
for Respondent City of Miami
Edward G. Guedes, John J. Quick, and Adam A. Schwartzbaum of Weiss Serota Helfman Cole & Bierman, P.L., Coral Gables, Florida,
for Respondent City of Miami Civilian Investigative Panel
G. “Hal” Johnson, General Counsel, Florida Police Benevolent Association, Inc., Tallahassee, Florida; and Robert D. Klausner, Adam P. Levinson, and Paul A. Daragjati of Klausner Kaufman Jensen & Levinson, Plantation, Florida,
for Amicus Curiae Florida Police Benevolent Association, Inc.
Richard A. Sicking and Mark A. Touby of Touby, Chait & Sicking, P.L., Coral Gables, Florida,
for Amicus Curiae Florida Professional Firefighters, Inc., International Association of Firefighters, AFL-CIO
Nancy G. Abudu of American Civil Liberties Union Foundation of Florida, Miami, Florida; and Jeanne Baker of Jeanne Baker Attorney at Law, PA, Miami, Florida,
for Amici Curiae American Civil Liberties Union of Florida, Greater Miami Chapter of American Civil Liberties Union of Florida, Miami-Dade Branch of the National Association for the Advancement of Colored People, and National Association of Civilian Oversight of Law Enforcement