State of Florida Ex Rel. Robert L. Shevin, Attorney General, Plaintiff v. Exxon Corporation
526 F.2d 266
5th Cir.
1976
Check Treatment

*2 Jr., Madi- A. John Skelding, Jack M. Tallahassee, Fla., Frick- Donald Jr., gan, C., Kilcarr, Washington, D. J. el, Andrew TUTTLE, Before THORNBERRY and Oil. Mobil for COLEMAN, Judges. Circuit Fla., Clark, Tampa, A. Harold. Thomas Reece McGuire, City, Wm. York New

F. THORNBERRY, Judge: Circuit Stone, Fla., L. Smith, Jr., Tampa, Oliver July of Florida Tex., Oil. Houston, for Shell com- through its Tallahassee, Fla., Vam, C. Wilfred highly publi- menced ambitious and C.,D. Wil- Hill, Washington, E. Richard against antitrust action seventeen cized Fla., Tallahassee, VanDercreek, liam companies in federal district major oil C., Jordan, III, Washington, D. E. Robert questions Among preliminary court. Atlantic-Richfield. by the defendants was the raised Emmanuel, Har- G. John G. Patrick General, under Florida of the Fla., W. Jr., Pensacola, Barbara kins, without ex- law,2 action to initiate this Pa., Oil. Mather, for Sun Philadelphia, depart- from other authorization plicit Fla., ments, agencies, political Miami, and subdivi- Williams, Reginald L. ruling the state.3 Prior Dickey, City, Daniel New York sions John it, Ottaviani, many Walbolt, Fla., other motions before Tampa, Lewis J. Bartlesville, Okl., sought to resolve this Phillips court Petroleum district by staying the action in issue threshold Co. solely complaint, (1970) is founded under 1 and 2 of the Sher- on 15 U.S.C. §§ §§ 1. The Act, (1970), 3 §§ and —the federal antitrust laws —and 15 U.S.C. the di- §§ man versity Clayton Act, jurisdiction of the §§ 7 of the 15 U.S.C. federal courts has and alleged (1970), of anti- not been invoked. a worldwide scheme production, competitive trans- activities the suit is in the name of the state refining, marketing petrole- portation, and whole, damages it seeks to al- recover as legedly petroleum products. um consumer, suffered the state as a divestiture, damages, seeks treble directly which have accrued to the constituent declaratory injunctive relief. “agencies, departments, units state —its political issue, subdivisions.” Although state determines law jurisdiction be noted that in the action should Attorney General to obtain for the order the State Florida.4 As chief judgment declaratory in the Florida representative king, the common deeming attorney general clearly subject courts. point, clear on the crown, but, instead to the wishes even in appeal times, an abortive to this prosecuted those reposi- office was also a Court, opin- we dismissed without discretion;5 tory the vol- *3 lack of a final order. The dis- variety ion ume legal of matters involv- removed this obsta- court since ing trict crown public the and the interest dismissing beyond cle, the action as one independence practi- made such limited authority. the necessity. Transposition cal of the insti- country, governmen- tution to this where followed, Attor- the appeal This initiative was among tal diffused the of- asserting vigorously his ney General of the executive ficers many branch and the and the lawsuit the to institute right comprising legisla- individuals the compa- contesting it. The oil defendants nies, branch, only tive could broaden this area however, forcefully urge af- not do attorney general’s discretion. court; they ar- of the district firmance a delicate issue is that the gue instead result, attorneys general the of As a law which of state one difficult significant enjoyed de- states have our to the Florida Su- be certified should gree of autonomy.6 Their duties and definitive decision. for its Court preme powers typically are not exhaustively under the circum- to do so decline by defined either constitution or statute At- presented and find the here stances but include all those exercised at com- properly in federal General to be torney mon law.7 There is and has been no there- of Florida. We on behalf court doubt legislature the may deprive fore reverse. attorney general the specific of powers; but in the absence legislative of such I. action, he typically may exercise all such authority as the attorney general public The is older interest requires.8 office attorney And the general than United States and older than has wide dis- king appeared 4. offícial by legal discretion to enter into those court his attorney by period English even in the earliest public matters deemed him to involve the legal history, interest, though it was expressly even not until sixteenth authoriz- century powers by ed statute. were consolidated in a single attorney who State ex Yarborough, Shevin v. could be called “the chief 257 So.2d representative 891, (Fla. 1972) (Ervin, J., of the crown in the 895 concurring) (em- courts.” VI Holdsworth, History added). English Law, phasis A W. (2d 457-61 ed. See, g., 7. Bristol-Myers State of Illinois v. e. Holdsworth, supra See VI W. 3, 5. 367, note U.S.App.D.C. 152 470 F.2d 1276 466-69,470; XII id. (1972); D’Amico v. Board of Medical Examin- ers, 1, Cal.Rptr. 786, 11 Cal.3d 112 520 P.2d 10 particularly where, 6. This is true inas (1974); Warren, State ex rel. Patterson states, attorney general of our most (1965); Miss. 180 So.2d 293 State ex rel. independently by an official people. elected Jones, Carmichael v. 252 Ala. 41 So.2d significance attorney general’s sta- (1949); 7 Am.Jur.2d § Gener- directly by people tus as an official chosen al; gener- 7 C.J.S. 5. See § General recognized by was Justice Ervin of the Florida ally Shepperd, Common Law Powers and these terms: Attorney General, Duties of the Baylor peo- is elected L.Rev. 1 ple; he is entrusted them with the com- D’Amico v. Board of Medical Ex- legally represent mon law them or aminers, Cal.Rptr. 11 Cal.3d some of them in matters deemed him to (1974); Darling Apt. Springer, P.2d Co. v. public Regard- affect interest. . 25 Del. 22 A.2d 397 State ex rel. par- less of his effectiveness efforts in Collins, Ervin v. (Fla. 1956); 85 So.2d 852 public legal situations, ticular at least 6, Attorney General; § Am.Jur.2d 7 C.J.S. At- people continuing have the satisfaction of torney 5. knowing that their elected has the to exercise his conscientious constitution, present In the law.” making determination cretion thirty years one hundred and adopted public interest.9 later, attempt- greater specificity can be seen that the common Thus it cabinet, including defining the ed. attorney general ap- powers the' who “shall be the Attorney General least, initially enough broad pear, officer,” the 1968 Flori- chief challenged in this support the action that;11 provides da Constitution course, observations con- But case. cerning and duties addition to attorney the historic office [i]n herein, specified members “typically” or that office as [the exercise shall in the United States cannot re- cabinet] exists pre- duties as perform such us. They can solve scribed law. background inquiry into provide and statutory constitutional specific in- provision This constitutional directs decisions, judicial provisions, provisions applicable quiry *4 Attorney office General the define statutory this refer to Does “law”. will Only inquiry allow us Florida. specific defining functions of provisions fully that office whether to determine or Attorney General does it include the or paradigm common differs the law fits powers broad and unenumerated the respects. significant in by the common prescribed office the law? Attorney the General of Although officer, the law the We find that common a constitutional is Florida provisions still obtain for several reasons. powers Florida constitutional

relevant First, has, pre-statehood specifically Florida since its attempted to list never have ' force period, enacted the common law in The first Florida Constitu- powers. his tion, 1838, not in conflict statute.12 provided in for an where written addition, statutory provision which the who would at- General elected the does enumerate Florida legislature, of the draft all sessions tend powers pretense makes no proceeding” necessary “forms of for laws sessions, being provides part it in “perform comprehensive; and the passed at duties, may prescribed that:13 as other such g., Mobil

9. v. Oil 353 to time be of him or Corp. required law, Kelley, (S.D.Ala.1973), legislature; 493 aff'd, 582 F.2d 784 resolution of the the shall, he on F.Supp. 1973), (5 governor, cert. 419 U.S. denied, 1022, Cir. 95 written requisition secretary the (1974); In re give 42 296 Inter 498, S.Ct. L.Ed.2d or state, treasurer, his comptroller, writing 326 vention Mich. official and in opinion advice (1949); Margiot touching 124 40 N.W.2d 213, Appeal on matter any duties; their official (1950); 330, 75 Pa. A.2d 465 365 State ex ti, he in appear shall and attend to in behalf of Love, v. 99 Fla. 126 374 rel. Davis So. all suits or state, prosecutions, civil or (Fla.1930); Am.Jur.2d Gener § in in criminal, or the state equity, 5.§ 7 C.J.S. al; be a or in may party, anywise in interested, court and district courts of supreme ap- (1838). 10. art. V Fla.Const., of this he peal state; shall in and appear or in (1968). attend to such suits prosecutions any 11. art. Const., IV, § Fla. other of the courts of this state, or state, courts of other or of the United (1961) (derived § 2.01 from Fla.Stat.Ann. States; he shall have and all perform pow- 1). generally State ex See § Nov. Act, or ers duties incident usual to such of- and Comm., v. Pub. Serv. McKittrick Missouri rel. fice, and he shall make and in his office keep (Mo. 857, S.W.2d all his official record of acts and proceed- (1961) in full: provides 16.01 Fla.Stat.Ann. containing ings, official copies of all his general shall reside the seat and attorney opinions, reports,-and correspondence, government, his office in a also and all offi- and shall his office keep keep preserve shall cial and perform him, letters and capítol; room communications registry constitution cause and duties index thereof to be prescribed also such other duties and made state, perform and all of which official kept, papers subject from time office, his and records shall be to the appropriate inspec- from to the decision in Gleason attorney shall Yarborough, v. ex rel. Shevin and State perform all (Fla.1972).15 See ex State to such office usual incident Collins, (Fla.1956); Ervin v. 85 So.2d 852 Kress, ex rel. Landis v. State Fla. most Finally, importantly, 155 So. 823 ex rel. State consistently Supreme Court Florida Love, (Fla.1930); Davis v. 126 So. 374 continuing existence of recognized ex rel. v. Bryan, Moodie 50 Fla. common Attorney General’s 39 So. 929 We conclude that clear decision The first powers. simply is no that such ex rel. case of State the 1869 issue Attorney powers exist. Gleason, in which held:14 the Court II. Attorney-General the attorney legal guardian people, or of does not even this conclusion But crown, according form of the case us. decide

government. pertain His duties has common State, Department of the Executive might not powers, ex duty his use means most specific asserted: tend to effectual to the enforcement of the of an action under federal institution laws, protection people, and the law, damages to recover sustained proper directed whenever au- agencies, political departments, sub thority, or when occasion arises. *5 . affirmatively which not divisions Legislature has seen Our not fit to specific even suit. And if the authorized any change in the common law make power law asserted exists as a common The Attorney-Gen- rule. office of the matter, might it be that Flori public a legal trust. It a eral presumption statutory law da’s constitutional or con he will do his duty, that point with the law flicts common on that impartiali- he will act with strict it. thus overrules In this confidence he has ty. been discretion, a large endowed with only not earlier, As noted Florida statuto this, in like cases in but other ry expressly authorizes the Attorney public The matters concern. exer- to “appear in and. attend to” cise such discretion its is in nature a in actions which party. the State ais act, judicial from which there is no 13, supra. Although it might See note and over appeal, which the courts have argued statutory power this in control. power well, cludes the to initiate suit as is no This Attorney of the there doubt that the affirmation existence of the common law powers power common law General’s of the General extends jurispru- does stand this Supreme alone Florida far. Court in It is echoed in after dence. case case ex rel. Landis v. Kress16 defined state, governor 189, 823, (1934). of the of the 16. Fla. tion 115 155 So. 827 by legislature argument by disposition reject act or reso- of the must defendants right “prosecute” thereof. to an lution action does not right include to institute the action. That 90, (Fla. 1869), quoted Fla. 112 14. 12 in State refer, unit, typically to term is used to as a Love, 333, Davis v. 99 126 So. ex rel. Fla. 374 institution maintenance to a conclusion of (1930) (emphasis added). legal proceeding. See Black’s Diction- Law Yarborough (4th ary 1968); Svetley, is room 1385 ed. Stewart v. 46 opinion 601, 670, (1971); Ala.App. as to the extent of the 246 difference 672 Peo- Zara, powers, clearly recog- ple 698, 43, the Court 44 common v. Misc.2d 255 N.Y.S.2d (1964); “The existence: nized their 46—47 Thelin v. Intermountain Lumber many powers 285, Supply, and duties from the inherited & Builders Nev. P.2d 80 392 626 State, (1964); Sigmon 258, Law . . ..” King’s Common Counsellor v. 200 105 Va. 171, Kelly, (1958); parte 257 So.2d S.E.2d 178 Ex 45 Okl.

271 legal officer, institute, in terms to power to initiate actions defend any litigation intervene in quasi- cover the case before or or clearly sufficient judicial administrative proceeding us: determines in his sound offi- power discretion involves a cial matter among many duty is his it compelling public interest. devolving upon him the common And, contrary contention, to defendants’ necessary actions prosecute all law to power insti- protection and defense litigation on his own tute initiative is not and the revenue of the state property quo proceedings warranto limited it is as broad Florida18 elsewhere;19 This “protection understanding as the and defense of the reiterated Ervin, state,” and, Justice property a former and revenue of the Florida Attorney General, indeed, public who stated that:17 interest requires.20 it inescapable duty is the historic As to whether authority is limit- General, again as the we chief under state law,21 ed to actions 577, 444, (1915); gal proceedings necessary P. protect State ex rel. the in- Dawson, v. Stubbs 86 Kan. 119 P. terests of the state Accord, (1911). 11, Attorney Am.Jur.2d § General. Jones, State ex rel. Carmichael v. Supreme That the Florida Court in Kress did (1949); 252 Berg, Morley Ala. 41 So.2d 280 adopt the restrictive definition not for its contended (1950); Ark. 226 S.W.2d 559 defendants is evidenced the fact that Examiners, D’Amico v. Board of Medical description quo power warranto also Cal.Rptr. 786, Cal.3d 520 P.2d 10 specifically did not mention the to insti- Gandy Co., v. Reserve Life Ins. 279 So.2d 648 action; power it was tute an right “to determine the (Miss.1973); Flanders, Bonniwell v. 62 N.W.2d usurps any one who claims or (N.D.1953); Agey Liberty Pipe v. American . office ..” Yet the Court said of this Line Tex. 172 S.W.2d 972 power that, where exists, cause to institute action “the 20. This was made clear in Kress the Florida authority present and out exists in him to with- quo Court’s inclusion of the warranto *6 respect power asked of leave one. he attorney general in the list of the represents sovereignty attorney whose quoted of office in text: Similarly, is.” 155 So. the Court Attorney power The by right General has the broadly duty Attorney stated that it is the General’s quo writ warranto to determine the power authority “to exercise all such usurps any one who claims or public may require as interests from time to office, and to vacate the charter or annul the (emphasis added). language time.” Id. Such corporation existence of a for violation of its very seems inconsistent with the narrow omitting corpo- charter or for to exercise its meaning “prosecute” which defendants ar- powers; prevent rate public to enforce trusts and gue was intended. pow- nuisances and the abuse of trust state, ers. As the chief law officer of the Yarborough, supra, 17. State ex rel. Shevin v. duty express legisla- is his in the absence of (Ervin, J., concurring). 257 So.2d at 894 contrary, tive restrictions to the to exercise example, Love, 18. For in State ex rel. Davis v. power authority public all such as inter- (Fla.1930), upheld 126 So. 374 the Court require est from time to time. Attorney prohi- to General’s file a writ of 155 only quo So. at 827. The conclusion that And, against judge. bition though a circuit court al- proceedings attorney warranto general’s power are within the involving original not institution of ac- negated to initiate is both court, in a trial State ex Ervin tions rel. v. type proceeding the inclusion of that in the Collins, supra, (appeal); State ex rel. Shevin v. apparent list without distinction and Kerwin, 1973) (Fla. (appeal), 279 So.2d 836 sweeping power acknowledged in the last sen- Yarborough, (in- supra, rel. Shevin State ex quoted passage. tence of the tervention) present examples Attorney 21. We note that the United States District General’s involvement of the state in other Court for the Southern District of Florida has litigation types of on his own initiative. that, law, held Attorney “under Florida 19. The black letter in 7 C.J.S. Gener- authority General has the enforce to institute suit to al 8a is: § rights created under the laws of Flori- attorney general, legal rep- as the chief Diversity suits, da in the Federal Court in but state, may resentative institute all le- rights not to enforce created under the laws of

272 Bankruptcy Act was authorized state Supreme start the Florida Court’s law); decision: “The Kentucky ex Commonwealth Kress prosecute F.Supp. 362 Ruckelshaus, power ... to has the all Hancock v. (action (W.D.Ky.1973) by attorney necessary protection 360 actions property under Air Act of general defenses of the and revenue of Clean reasons, added). (emphasis state” all these we find no basis note For holding also such a limitation would result rights act significant may not to enforce a state’s impairment in a of the state’s ability federal well as state law. under as expeditiously important assert rights laws, under the antitrust bank- Finally, argued that, it could be al- laws, ruptcy legisla- and other federal though power the common law tion; if authorization must be forthcom- attorney general to initiate actions under legislature ing myri- from or from a exists, power federal law no agencies, ad of it will in some cases initiate action without affirmative too late to come be worthwhile. More- authorization from state instrumentali- over, study applicable Florida statutes where, here, ties the action seeks to no basis reveals for such a restriction. damages allegedly recover accruing to contrary, To General is those instrumentalities.22 Pertinent “appear authorized to in and attend to” point are the Supreme Court litigation in state and federal courts in Holland v. Watson, decisions 153 Fla. 16.01, (1961). alike. Finally, Fla.Stat.Ann. 178, (1943), 200 and Watson v. we note that actions attor- 1, Caldwell, 158 Fla. 27 So.2d 524 neys on behalf of states under cases, the In those Court held that the federal antitrust laws are statutorily-created Board of Administra- phenomenon. means novel and Trustees of tion the Internal Im- California, Hawaii v. Standard Oil of provement required Fund were not U.S. S.Ct. 31 L.Ed.2d 184 allow the Attorney represent General to ; (1972) In re Multidistrict Motor Vehicle legal matters, them but employ could Air Pollution Equipment, Control special counsel choosing. of their own (9 Cir.), F.2d nom., cert. denied sub Morgan v. 414 We find that Holland and Watson do Assn., Automobile Mfr’s U.S. S.Ct. 38 L.Ed.2d 336 cast doubt on the Attorney General’s ; (1973) State of Illinois v. Bristol-Myers power this case for several reasons. U.S.App.D.C. Co., 470 F.2d 1276 First, those cases were not ones in which Virginia State of West v. Chas. litigation General’s (2 Co., Cir.), & F.2d Pfizer cert. cases, was at issue. In both the Florida nom., Drugs, denied sub Cotler Inc. v. categorized 404 U.S. Chas. Pfizer & 92 S.Ct. under three headings: *7 30 L.Ed.2d 115 of State Illi Producers, Inc., nois v. Associated Milk (1) duties as the Such Constitution and F.Supp. (N.D.Ill.1972); State ex Legislature him, lay (2) the His Derryberry Corp., v. Kerr-McGee as to the advisor officers 813 (Okl.1973). P.2d See also Gardner v. Executive Department, (3) of Jersey, State New U.S. duty litigation His as to in which the (1947) S.Ct. 91 L.Ed. 504 (attorney is a party State or is otherwise inter- general’s response objections to 202; in rail ested. at So.2d at reorganization road proceeding under proceedings example, the United States.” Point East One Condo- a to abate nuisance or in Corp. Developers, quo minium v. Point East Inc. of warranto —and the nature those the Civ.-CA, (No. 17, 1974). consumer, Oct. in which the state be as a 73-1815 — depart- as a collective the various seen argument 22. Such an would draw a distinction ments, agencies, which and subdivisions are between actions the state to vindicate its actual consumers. the government entity as a interests unified —for the part are not “Executive question then treated the be- Thus, Department” Florida. even if (2) falling as under the fore it —whether and, believe, extreme we incorrect “officers of the Executive this phrase adopted, were reading of those decisions govern- to the Department” extended Attorney powers with re- question. in the General’s scope bodies mental spect Department to the basic Executive Attorney litigation power, the General’s above, unquestioned. At (3) would remain this was not discussed at all. under case, stage question the sole dealt Second, question eases in the Attorney is whether the decision which there in situation awith in properly Florida is federal court the wishes of the Attor- between conflict action; is, essence, this it in prosecuting body as government ney that, question standing. We find legal representation. The body’s to as to the General’s least its legal counsel on secured body had represent the state on behalf of to to Attorney General sued own Departments, Executive there can basic contrast, By that action. enjoin significant no doubt.23 us of the' record before in no evidence govern- objection part on the reasons, be we For all of these allegedly have been bodies which ment and Watson cases the Holland that lieve prac- injured by the defendants’ business au Attorney General’s negate the do matter, And, it is practical aas tices. action.24 bring the instant to thority imagine objections. The to difficult that we believe Neither do government instrumentalities individual seriously cast in authority is General’s gain from something to involved cited statutes by the Florida doubt suit, their nothing to lose but stat The fact that various defendants. (by way judicata of action of res causes portions of Flori delegate specific utes estoppel); and in view of collateral state’s attorn litigation da’s suit, difficulty of this novelty and in indicates án abro eys25 way no unlikely govern- that those most seems com General’s gation of prosecute prefer would entities ment types of to other mon individually. of action causes their in still obtain those litigation; provi express legislative importantly, Holland absence of Finally, and most g., ex read, contrary. very can be and Watson sion Warren, 254 Miss. most, General’s negate rel. Patterson (1965); 7 Am. 299-300 litigation powers independent 180 So.2d General; 7 10, Attorney C.J.S. governmental entities respect to those Jur.2d § any subsidiary ques- Yarborough, we leave in State ex rel. Therefore Shevin v. representation (Fla. 1972). tions as to the of the state on So.2d 891 The Florida governmental opinion “[w]e, behalf of other Court stated its that entities to the there- fore, stage (and assump- of this action we make no conclude that General does represent reached) have status to tion it will be those the State as a at which con- sumer”, apparently questions will become calcula- without authorization relevant: so, damages. doing subordinate entities who are the direct tion of we are us; way evading properly consumers. But defendants are an issue correct in not- ing standing And our ac- status resolved. regard contrary policy against piece- was not at issue in the case. tion is not litigation. possibility meal There is a that this (1961) (original *8 25. E. Fla.Stat.Ann. 27.02 § otherwise, litigation, settlement or will not proceedings; 17.20, criminal Fla.Stat.Ann. §§ any damages stage. event And in reach (collection claims; (1961) 27.10 of state Fla. damages computation is we believe that the 544.03, (1961) (criminal §§ Stat.Ann. 544.06 likely part to be a minor of the lawsuit as injunctive against and action combinations compared to the establishment of a substan- tending beef). to obstruct sale of tive cause of action. point, reaching we 24. In our conclusion on this heavy on the decision reliance see no need III.

Attorney And Florida General § Legislature’s authorization of suit (1) conclude that the Attor- Thus we under De- the Florida ney of Florida retains common Act, and Unfair Trade ceptive Practices (2) powers, powers extend law that those (1974 seq. 501.201 et § Fla.Stat.Ann. institution of suits federal law under Supp.), negate not does his with specific of the in- authorization without relation to federal antitrust laws. government al- entities who dividual legedly part assigns statute of its That enforce- injuries have sustained attorneys, to the state’s ment thus asserted, (3) and that neither the deci- necessitating specific delineation of the statutory nor law Florida ne- sional respective responsibilities of the state’s gates authority. such and attorneys General. The conclusion, exten- this after reach specific authorization therefore had an study briefing by and par- able all sive ties, independent purpose permits neg- no considerable confidence. acts; implication ative as to the federal view, simply extremely this is not our event, grant statutory of a question. close power possessed by attorney general But whatever confidence, our only normally at common does not de- Supreme Florida Court can decide prive him other this powers. common law question is, state by definition, a manner that ex Jones, See Carmichael v. correct. Thus defend- (Ala Ala. . strong urging ants’ 1949); that the issue be cer- C.J.S. 5.§ tified to that Court26 has considerable Finally, defendants cite the 1969creation force. Both Supreme the United Department States Legal Affairs, General, head- Court27 Court28 have lauded the ed serve as process, certification because it requested counsel where gov- produces definitive answers but bodies, also be- ernmental indepen- cause “helps rights cooperative judi- build a dent to sue on their own behalf. cial federalism”. Lehman Bros. (1974 Fla.Stat.Ann. v. Supp.). 20.11 But Schein, 386, 391, U.S. statute S.Ct. merely transfers the Attor- 1744, 40 (1974). However, L.Ed.2d 215 powers, ney General’s including all those law,” as has been Brown, Judge noted Chief “prescribed by provides strongest one of the advocates of each board “of which gen- the attorney process, certification should is never be may eral a member” retain other automatic or unthinking. Thus, “We use much counsel. to the extent the statute judgment, restraint and discretion in cer- relevant, all it casts no more doubt tifying. We do not abdicate.” Barnes v. General’s than Atlantic & P. Life Ins. 514 F.2d cases, Holland and Watson. Like those (5 n. 4 1975). Cir. the statute deals with a rights board’s and, obtain other counsel if it so chooses cases, like those applies statute In determining whether to exer

only a upon few of the entities whom cise our discretion in favor of certifica standing tion, in this we consider many factors. The may case be based. important most are the closeness law, argument 4.61, 26. Under Florida Su- may the United States oral Rule allowed. Fla. preme App.Proc. Court of Court United States R. Appeals questions certify of state law to Schein, 27. Lehman Bros. v. 416 U.S. Supreme ques- the Florida Court where (1974). S.Ct. 40 L.Ed.2d 215 cause, tions “are said determinative E. Secretary Coastal Petroleum v. controlling precedents are clear in the Army, (5 1973); Hopkins 489 F.2d 777 Cir. supreme decisions of the of this court state.” (5 Corp., Lockheed Aircraft 394 F.2d 656 Cir. Fla.Stat.Ann. § 25.031 then briefed *9 suasive, though certainly binding, and the of sufficient existence question statutes, judicial Florida courts. of state Fla.Stat.Ann. 16.01 sources law— decisions, opinions Beverly attorney general’s see v. Division of Bever —to age Dept. Regulation, of of Bus. allow a principled conjectur rather than (Fla.D.Ct.App.1973). He al conclusion. But also to be considered , brought degree this action in what to which considerations of he has deter- light par public of to be the are relevant mined interest comity and has proceeded issue be decided.29 years and case to for two without appar- ticular opposition must also take into account ent from the Legisla- And we governmental the state the certification ture or practical limitations of entities significant delay possible purports represent. impede To process: inability pro progress through to frame issue so as to of this action the certi- process helpful response part on of fication itself duce a seems to us to in- disregard court.30 some of gov- the state volve the state processes ernmental that comity princi- earlier, As we have noted require ples respect. us to issue of the Florida narrow Moreover, that, we note unlike most standing bring this action eases, certification this is not an Erie extremely not seem to us an does close diversity case in which the federal courts And we come to this conclusion one. merely provide impartial forum. It is long the aid of a line of Florida pure federal case in which decisions—from Gleason to Kress to Yar law happens state to be relevant in de borough body well of as the common —as termining the standing. issue of Addi dealing with attorneys tionally, this is not a suit which could This is not a general. clearly case in brought court, ever have been in state required “guess” which we are state since the federal courts have exclusive one questionable prece from or two jurisdiction over Sherman and Clayton dents. Act eases. 15 U.S.C. §§ urge Defendants the issue before fact primarily this is a federal is one which us concerns “the fundamen- case, and one which has not been “lured” political tal structure of the State of into federal court means of the diver and thus Florida” involves a “sensitive jurisdiction, sity renders considerations of state might area law.” we comity federal-state somewhat less respond that the absence of intervention persuasive still. by other state instrumentalities casts upon degree doubt to which this Finally, case we must consider an inevita- conflict, involves actual internal state we ble side effect delay. of certification — recognize point that this has some experience validi- The in our Circuit has been Comity ty. ap- considerations are more process requires period ap- plicable in this than in case one involv- proaching year one at the least —some- example, the ing, interpretation of a much more. times Allen v. in an Carman, clause insurance (5 contract. How- Estate 446 F.2d 1276 Cir. ever, not entirely way 1971), clear which receipt on of answers to certifica- policy in respect tion, favor of (5 1973) (28 486 F.2d 490 Cir. processes governmental months); cuts in Hopkins this case. v. Lockheed Aircraft We have us the Corp., (5 1966), 358 F.2d 347 Cir. on re- people Florida, elected whose certification, ceipt answers questions opinions involving the (5 1968) (26 months). F.2d Cir. per- various state officials are prospect delay par- consider of such Wright, likelihood of 30. See C. One this is the 203- aspect of Federal Courts Law See (2d 1970). issue. particular recurrence ed. Co., 514 F.2d v. Atlantic & P. Life Ins. Barnes (5 Cir. *10 question, where, especially into as drawn here, ticularly significant in the context of and, authority express the is not years two one-half case. Over and this already best, only supplied by implica- can be filing passed since many preliminary tion. complaint and this yet to be resolved. The questions are though Even a state place must take to es- discovery which exercising authority is common law as violations, alleged if there be tablish officer, realm, chief law he extremely massive and be any, can dpes authority not exercise that as result, As a we believe time-consuming. monarch, governed only by unlimited his absolutely delay that is not neces- judgment. necessarily remains, He own quite possi- be avoided. It sary should only, duly can act as the and authorized charges against the defend- ble that (servant) agent the State from ill-founded; they if wholly but ants are he authority, whence derives his as for- should do prevail, defendants deserve merly King. from the through rather than so on the merits Eng- “The and duties of the passage of time. attorney general, though frequent- lish to cer- For all these reasons we decline to as common-law ly referred question in this case to tify the state law duties, were not in fact such. He Supreme taking In Florida Court. King’s legal rep- was the adviser and action, we intend this to cast doubt courts, him in the and was resented efficacy of the certifica- on the when the common law came to this certainly recognize And we process. tion country appointed not under com- supremacy of the Supreme Florida by letters-patent rule but mon-law law, interpreter as of state as well Court King, set which forth what his possibility, though we believe it to as the be, powers and duties should including small, that our today decision is an be appear the courts which could one. erroneous King’s representative, and he was decisions, judicial subject King’s all times to the certainty

Absolute su- action, pervision human is a and control. 6 as in other areas of Holdsworth’s expensive History Law, commodity. In certi- the Common rare 458 et cases, true that seq. unlike most which come It is the common law fication us, us, recognized represent it is available to since the his King in the Supreme word final. courts to the extent autho- Florida Court’s case, by his letters-patent, in this with the law on this rized but did not But clear, right.” broaden fairly price we find the confer this issue certainty high, delay too in terms of out, majority opinion points As the may prejudice plaintiffs’ Constitution directs that the mer- rights speedy to a resolution of General “shall exercise its. perform such duties as judgment Therefore the is reversed. prescribed (emphasis law” mine). There is much room for doubt COLEMAN, (dissent- Judge Circuit by implication ing): authority “prescribed by has law” to certify respectfully I dissent. I would suit, bring particular freighted this as it to the expense potentially much is with my concept Florida. Under federal- heavy court costs. ism, Tribunal be the one to should event, last, authority, power, first and this is delineate solely question law, dealing of its in those of Florida one of its been with authority purports situations where that officials who Smith, State, dissenting Kennington-Saenger Miss. 1. Chief Justice Theaters v. 18 So.2d 153 A.L.R. juris- While we have its behalf. act on incidentally to decide it

diction pending *11 suit, give I would final, it in a a chance resolve

courts binding manner, especially since we need the doctrine of abstention but invoke specific procedure, resort to a fre- questions invoked in of less far

quently consequences.

reaching America,

UNITED STATES of

Plaintiff-Appellee, Wesley MARZETT,

John

Defendant-Appellant. 75-3109

No.

Summary Calendar.* Appeals,

United States Court of

Fifth Circuit.

Jan.

Christopher Hume, III, G. Mobile, Ala. (Court-appointed), for defendant-appel- lant.

* 18, Cir.; Enterprises, Casualty see Isbell Company Rule Inc. v Citizens of New York et al., Cir., 1970, 431 F.2d Part I.