STATE OF FLORIDA, Aрpellant, v. ANDREW SCOTT CROSE, Appellee.
No. 2D21-2784
DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
January 26, 2024
LUCAS, Judge.
LUCAS, Judge.
The State of Florida appeals an order dismissing a charge against Andrew Scott Crose for failure of a sex offender to report an electronic mail address or instant message name, a violation of sections
Whether a sex offender has completed his prior criminal sanction would seem to be a relatively simple inquiry. But a panel decision interpreting section
I.
Because of the nature of the issue we must address and how the timing of legal developments impacted the proceedings below, our recitation of the facts and our legal analysis are somewhat intertwined. In this section, we recount Mr. Crose‘s criminal history, the charge the State now alleges against him, and how the law concerning that criminal charge has changed during the course of the circuit court case and this appeal.
A.
In 2016, Mr. Crose was convicted for the use of a computer to seduce, solicit, or entice a child to commit a sex act in violation of section
In the case at bar, the State charged Mr. Crose with failure of a sex offender to report an electronic mail address or instant message name under sections
In order to better understand what transpired in the circuit court proceedings, we must pause here and unpack what his argument entailed. Under section
(h) 1. “Sexual offender” means a person who meets the criteria in sub-subparagraph a., sub-subparagraph b., sub
subparagraph c., or sub-subparagraph d., as follows: a. (I) Has been convicted of committing, or attempting, soliciting, or conspiring to commit, any of the criminal offenses proscribed in the following statutes in this state or
similar offenses in another jurisdiction: s. 393.135(2); s. 394.4593(2); s. 787.01, s. 787.02, or s. 787.025(2)(c), where the victim is a minor; s. 787.06(3)(b), (d), (f), or (g); former s. 787.06(3)(h); s. 794.011, excluding s. 794.011(10); s. 794.05; former s. 796.03; former s. 796.035; s. 800.04; s. 810.145(8); s. 825.1025; s. 827.071; s. 847.0133; s. 847.0135, excluding s. 847.0135(6); s. 847.0137; s. 847.0138; s. 847.0145; . . . or any similar offense committed in this state which has been redesignated from a former statute number to one of those listed in this sub-sub-subparagraph; and
(II) Has been released on or after October 1, 1997, from the sanction imposed for any conviction of an offense described in sub-sub-subparagraph (I). For purposes of sub-sub subparagraph (I), a sanction imposed in this state or in any other jurisdiction includes, but is not limited to, a fine, probation, community control, parole, conditional release, control release, or incarceration in a state prison, federal prison, private correctional facility, or local detention facility . . . .
(Emphasis added.)
In State v. James, 298 So. 3d 90 (Fla. 2d DCA 2020), we construed this statutory language to affirm a trial court‘s dismissal of a failure to register charge in a situation almost identical to Mr. Crose‘s. The defendant in James had completed his incarceration, but he hadn‘t paid his $10,000 fine, which was part of the sanction the court had imposed. James, 298 So. 3d at 91. Citing fundamental principles of statutory construction, we concluded that
Mr. James’ entire “sanction” for his conviction under section 800.04 consists оf fifteen years’ prison and a $10,000 fine. . . . Accordingly, his sanction, as a whole, has not been released, and he does not qualify as a “sexual offender” for purposes of reporting and registration under section 943.0435.
Id. at 92. Mr. Crose‘s motion to dismiss argued that James’ interpretation and application of the statute was dispositive and required dismissal of this criminal charge.
B.
If James had remained the last word on the subject, the circuit court‘s ruling (and the assigned panel‘s review of it) would have been relatively uncomplicated. But within a relatively short span of time, two developments transpired.
1.
The first was the legislature‘s amendment to subsection (h)1 of section
In amending the subsection, the legislature specifically stated:
The Legislature finds that the opinion in State v. James, 298 So. 3d 90 (Fla. 2d DCA 2020), is contrary to legislative intent and that a person‘s failure to pay a fine does not relieve him or her of the requirement to register as a sexual offender pursuant to s. 943.0435, Florida Statutes. The Legislature intends that a person must register as a sexual offender pursuant to s. 943.0435, Florida Statutes, when he or she has been convicted of a qualifying offense and, on or after October 1, 1997, has:
(1) No sanction imposed upon conviction; or
(2) Been released from a sanction imposed upon conviction.
See ch. 2021-156, § 1, Laws of Fla. (2021) (emphases added). The legislature also amended section
Armed with this new enactment, the State sought to convince the circuit court that the charge against Mr. Crose should be allowed to proceed. The State didn‘t go so far as to suggest that the amended version of the statute should apply, after the fact, to Mr. Crose‘s criminal charge, which arose from conduct that allegedly occurred some two years before the amendment went into effect. But the State did maintain that the circuit court could—and should—consider the legislature‘s stated intention when it amended the statute because the amendment “effectively overturn[ed] James.”
The circuit court was not persuaded by the State‘s arguments. In granting Mr. Crose‘s motion to dismiss, the court ruled:
Based on the facts and circumstances of this case and the language of the applicable statute, the Court finds the Defendant‘s argument persuasive and the James case controlling. Though[] the legislature has now made its intent clear, the modification has not yet gone into effect. At the time the Defendant committed the alleged crime in this case, he was on probation and still under the supervision of the Department of Corrections.
The State then filed a motion for rehearing and fleshed out its prior argument. On rehearing, the State pointed out that the amendment to section
of “a sanction” should trigger the requirement to register as a sex offender), the court should deny Mr. Crose‘s motion to dismiss.
Mr. Crose (now represented by the Public Defender‘s office) countered that notwithstanding the subsequent amendment to the statute, James was controlling precedent and that, as such, it had to be applied to Mr. Crose‘s case. Furthermore, he argued that allowing the legislature to retroactively refine the application of a criminal statute violated the constitutional prohibition against ex post facto laws.3
The court again agreed with Mr. Crose and entered an amended order granting his motion to dismiss. In addition to the reasoning set forth in its prior order, the court added:
[A]pplying the new 2021 statutory definition to Defendant‘s 2019 conduct runs
afoul of the prohibition against ex post facto laws: “For a criminal law to be ex post facto it must be retrospective, that is, it must apply to events that occurred before its enactment; and it must alter the definition of criminal conduct or increase the penalty by which a crime is punishable.” Victorino v. State, 241 So. 3d 48[, 50] (Fla. 2018) (citing Lynce v. Mathis, 519 U.S. 433 (1997)). The effect of applying the 2021 change in the definition of “sexual offender” to Defendant‘s status and his conduct in 2019 amounts to an ex post facto law.
The State then initiated its appeal.
2.
The second development arose while the State‘s appeal was under consideration. Before Mr. Crose filed his answer brief, this court changed course, so to speak, about how to interpret section
3d 459, 464-65 (Fla. 2d DCA 2022), a divided panel “reluctantly affirm[ed]” a trial court‘s order denying a sexual offender‘s motion to dismiss a failure to register charge, concluding that, under the prior version of section
Why the turnaround from James? The Hull majority concluded that it was bound by the “recent controversy rule” to reexamine our prior application of the prior version of section
Under this [the recent controversy] rule, when “an amendment to a statute is enacted soon after controversies as to the interpretation of the original act arise, a court may consider that amendment as a legislative interpretation of the original law and not as a substantive change thereof.” See Lowry v. Parole & Prob. Comm‘n, 473 So. 2d 1248, 1250 (Fla. 1985); see also Madison at Soho II Condo. Ass‘n v. Devo Acquisition Enters., 198 So. 3d 1111, 1116 (Fla. 2d DCA 2016).
Applying this rule, Hull held that “the legislature‘s abrogation of James and the legislature‘s express and specific clarification of its intent” bound the court “to conclude that a person who has failed to pay court costs is not relieved of the requirement to register and report as a sexual offender.” Id. at 465.
With Mr. Crose‘s appeal still “in the pipeline” at the time Hull issued, see Wheeler v. State, 344 So. 2d 244, 245 (Fla. 1977) (“The decisional law in effect at the time an appeal is decided governs the issues raised on appeal, even where there has been a change of law since the time of trial.” (citing Evans v. St. Regis Paper Co., 287 So. 2d 296 (Fla. 1973); Williams v. Wainwright, 325 So. 2d 485 (Fla. 4th DCA 1975); Cosby v. State, 297 So. 2d 617 (Fla. 1st DCA 1974)))), the panel assigned to the case at bar found itself in the dilemma of having two recent, binding panel decisions that would yield two diametrically different outcomes. Under James’ construction of the statute, the court‘s dismissal of Mr. Crose‘s charge would be affirmed; under Hull, a reversal would be required.
II.
“Because a motion to dismiss pursuant to rule 3.190(c)(4) requires the lower court to make a pretrial determination of the law of the case when the facts are not in dispute, the standard of review on appeal is de novo.” State v. Delprete, 331 So. 3d 174, 176 (Fla. 4th DCA 2021)
(quoting State v. Benjamin, 187 So. 3d 352, 354 (Fla. 4th DCA 2016)). There were no facts in dispute before the circuit court; this case turns on an interpretation of a statute, a legal determination that is reviewed de novo. See Braine v. State, 255 So. 3d 470, 471 (Fla. 2d DCA 2018) (“Statutory interpretation raises an issue of law, and we review the trial court‘s ruling de novo.” (quoting Wegner v. State, 928 So. 2d 436, 438 (Fla. 2d DCA 2006))).
When interpreting statutes, the Florida Supreme Court has now instructed us to “follow the ‘suрremacy-of-text principle‘—namely, the principle that ‘[t]he words of a governing text are of paramount concern, and what they convey, in their context, is what the text means.’ ” Ham v. Portfolio Recovery Assocs., 308 So. 3d 942, 946 (Fla. 2020) (alteration in original) (quoting Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 56 (2012)). Our interpretative work here, however, cannot be performed without first considering the body of case law surrounding the recent controversy rule, a task to which we will now turn.
III.
Our analysis will begin with an examination of the issue seized upon in Hull and the heart of this case, the recent controversy rule. We will proceed through this rule‘s history, its development, and its current state in our district. We will then examine several reasons why we believe this common law rule can no longer be aligned within current Florida jurisprudence. We will conclude by resolving this case in light of the principles of statutory interpretation we are now charged with applying.
A.
1.
We can trace the first application of what would eventually become the recent controversy rule4 to a sales tax dispute. In Gay v. Canada Dry Bottling Co. of Florida, 59 So. 2d 788, 788 (Fla. 1952), the
Recognizing that its interpretation might not have been “a strict adherence to the letter of the definition” in the statute, the court remarked that the “[l]egislature of this State at its 1951 session amended the Revenue Act of 1949 to specifically provide that the [resale] exemption . . . applied only to those [materials] which are intended to be
used one time only.” Id. From this development, the Gay court appended a new approach to construing tax statutes in Florida:
We think, as did the California court in [Coca-Cola Co. v. State Board of Equalization, 156 P.2d 1, 2 (Cal. 1945),] that “This change may be considered in determining the scope of the tax statute at the time of the transactions here involved for in view of an amendment to the Retail Sales Tax Act at a time when certain groups were resisting collection of taxes assessed against thеm, the court could infer a legislative intent to clarify rather than change the existing law.”
The next sentences of the opinion, however, seemed to allow (or perhaps even mandate) the application of this novel tool of construction to any amendment to any kind of statute:
The rule seems to be well established the interpretation of a statute by the legislative department goes far to remove doubt as to the meaning of the law. The court has the right and the duty, in arriving at the correct meaning of a prior statute, to consider subsequent legislation.
Id. (emphasis added) (quoting Gen. Petroleum Corp. of Cal. v. Smith, 157 P.2d 356, 360 (Ariz. 1945)).
In the ensuing years, Florida courts would occasionally reference Gay‘s holding that statutory amendments could clarify prior legislation,5 but the recent controversy rule as we now know it wouldn‘t come into full bloom until 1985. That was when, for the first time, the Florida Supreme Court began to construe legislative amendments enacted in response to legal controversies as a tool for interpreting prior, preamendment legislative meaning. Two cases, Lowry v. Parole & Probation Commission,
473 So. 2d 1248 (Fla. 1985), and State v. Lanier, 464 So. 2d 1192 (Fla. 1985), laid the foundation for this expansion.
In Lowry, 473 So. 2d at 1248-49, a prisoner serving two consecutive sentences had been granted parole before he began serving his second sentence. Shortly before his parole release date, the Attorney
Working through the competing arguments, the court in Lowry observed:
Petitioner and respondents have all urged cogent arguments supporting their disparate interpretations of the statutes in question. Where reasonable differences arise as to the meaning or application of a statute, the legislative intent must be the polestar of judicial construction. Tampa-Hillsborough County Expressway Authority v. K.E. Morris Alignment Services, Inc., 444 So. 2d 926 (Fla. 1983); Tyson v. Lanier, 156 So. 2d 833 (Fla. 1963). Petitioner and respondent filed notices of pending legislation ordered enrolled, bringing to the Court‘s attention Committee Substitute for House Bill 1298, ordered enrolled May 30, 1985 and submitted to the Governor and signed into law June 11, 1985, effective upon becoming law. This bill clarified the manner in which presumptive parole release dates are to be calculated for prisoners serving consecutive sentences. It specifically provides that “The guidelines shall require the commission to aggravate or aggregate each cоnsecutive sentence in establishing the presumptive parole release date.” At oral argument, counsel for respondent Wainwright conceded that under the pending legislation, petitioner would be entitled to release.
When, as occurred here, an amendment to a statute is enacted soon after controversies as to the interpretation of the original act arise, a court may consider that amendment as a legislative interpretation of the original law and not as a substantive change thereof. United States ex rel. Guest v. Perkins, 17 F. Supp. 177 (D.D.C. 1936); Hambel v. Lowry, 264 Mo. 168, 174 S.W. 405 (Mo. 1915). This Court has recognized the propriety of considering subsequent legislation in arriving at the proper interpretation of the prior statute. Gay v. Canada Dry Bottling Co., 59 So. 2d 788 (Fla. 1952).
In examining Chapter 947 in light of section
775.021(4), Florida Statutes (1983) and section775.087(2), Florida Statutes (1983) , it is unmistakable that the amendments contained in the pending bill are expressions of prior and continuing legislative intent. Thus we hold that while AGO 85-11 is a reasonable interpretation of the law, it does not represent legislative intent.
Id. at 1249-50 (emphasis added).
Lanier offered a more succinct—and more robust—application of this approach. In Lanier, 464 So. 2d at 1193, the court accepted jurisdiction of a question of great public importance as to whether a defendant could be convicted of a lewd, lascivious, or indecent act on a twelve-year-old child where “the undisputed facts reveal that the twelve-year-old was previously unchaste and the sexual intercourse was consensual.” The Third District had answered the question in the negative. Id. The Florida Supreme Court disagreed and quashed the appellate court‘s decision. Id.
The entire basis of Lanier‘s rationale was an amendment to the pertinent criminal statute, section
acknowledged that it had to apply the statute “as it existed at the time the allegedly lewd and lascivious acts occurred, prior to the enactment of the amendment.” Id. And the court was not “bound by statements of legislative intent uttered subsequent to either the enactment of a statute or the actions which allegedly violate the statute.” Id. Nevertheless, the court would “show great deference to such statements, especially in a case such as this, when the enactment of an amendment to a statute is passed merely to clarify existing law.” Id. That “great deference” compеlled the court to conclude that the legislature‘s subsequent disavowal of these defenses indicated that the legislature never intended for them to be defenses in the first place. Id.
Since Lanier and Lowry, statutory amendments have been marshalled to ascertain the meaning of preamendment statutory text on numerous occasions. See, e.g., Hardee County v. FINR II, Inc., 221 So. 3d 1162, 1167 (Fla. 2017); Metropolitan Dade County v. Chase Fed. Hous. Corp., 737 So. 2d 494, 503 (Fla. 1999); Finely v. Scott, 707 So. 2d 1112, 1116-17 (Fla. 1998); Palma Del Mar Condo. Ass‘n #5 of St. Petersburg, Inc. v. Com. Laundries of W. Fla., Inc., 586 So. 2d 315, 317 (Fla. 1991); Hull, 349 So. 3d at 459; Madison at Soho II Condo. Ass‘n v. Devo Acquisition Enters., 198 So. 3d 1111, 1116 (Fla. 2d DCA 2016); Essex Ins. Co. v. Integrated Drainage Sols., Inc., 124 So. 3d 947, 952 (Fla. 2d DCA 2013); Archstone Palmetto Park, LLC v. Kennedy, 132 So. 3d 347, 352-53 (Fla. 4th DCA 2014); Sch. Dist. of Martin Cnty. v. Pub. Emps. Rels. Comm‘n, 15 So. 3d 42, 45-46 (Fla. 4th DCA 2009); G.E.L. Corp. v. Dep‘t of Env‘t Prot., 875 So. 2d 1257, 1262-63 (Fla. 5th DCA 2004); State Dep‘t of Bus. & Prof. Reg., Div. of Pari-Mutuel Wagering v. WJA Realty Ltd. P‘ship, 679 So. 2d 302, 306 (Fla. 3d DCA 1996); Kaplan v. Peterson, 674 So. 2d 201, 205 (Fla. 5th DCA 1996); State Dep‘t of Banking & Fin. v. Evans, 540 So. 2d 884, 887 (Fla. 1st DCA 1989); State Dep‘t of Lab. & Emp. Sec. v. Mission Ins. Co., 507 So. 2d 137, 138 n.1 (Fla. 1st DCA 1987).
Though it is more frequently invoked in civil controversies, the Florida Supreme Court has been clear that this tool for divining legislative intent is available in criminal cases. As the court explained in Leftwich v. Florida Department of Corrections, 148 So. 3d 79, 84 (Fla. 2014), “the United States Supreme Court has held that the federal ex post facto clause generally does not apply to judicial precedent.” (citing Marks v. United States, 430 U.S. 188, 191 (1977)). Thus, while a clarifying amendment cannot be used to construe an ambiguous criminal statute in a way that would result in a longer prison sentence, an amendment to a criminal statute may still be relevant to determine the intent of the previous version of the statute. Id. at 83; see also Hull, 349 So. 3d at 465 (“[T]he legislature explicitly clarified that failure to pay a ‘fine’ in this context does not relieve a person ‘of the requirement to register as a sexual offender.’ Ch. 2021-156, § 1, Laws of Fla. . . . Under the recent-controversy rule, it follows that the term costs should not be read into the definition of sanction in the preamendment version of the statute.“); Burgos v. State, 765 So. 2d 967, 968 (Fla. 4th DCA 2000) (構築 statutory amendment to clarify felon registration requirements, which were “regulatory, not punitive” and thus, did not violate the ex post facto prohibition); State v. Sedia, 614 So. 2d 533, 535 (Fla. 4th DCA 1993) (relying on a 1992
To be sure, there are times when courts have declined to consider subsequent amendments when interpreting a prior version of a statute. See, e.g., Nunez v. Geico Gen. Ins. Co., 117 So. 3d 388, 398 (Fla. 2013); Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 945 So. 2d 1216, 1230-31 (Fla. 2006); McKenzie Check Advance of Fla., LLC v. Betts, 928 So. 2d 1204, 1210 (Fla. 2006); Parole Comm‘n v. Cooper, 701 So. 2d 543, 544-45 (Fla. 1997); State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So. 2d 55, 61-62 (Fla. 1995); Dean Wish, LLC v. Lee County, 326 So. 3d 840, 850-52 (Fla. 2d DCA 2021); Ramcharitar v. Derosins, 35 So. 3d 94, 98-99 (Fla. 3d DCA 2010); Betts v. McKenzie Check Advance of Fla., LLC, 879 So. 2d 667, 674 (Fla. 4th DCA 2004); Kleparek v. State, 634 So. 2d 1148, 1148 (Fla. 4th DCA 1994). But discerning an articulable and replicable basis for that refrainment—whether because of the span of time between an original enactment and its amendment or the length of years between when a controversy arises and when an amendment is enacted in response to the controversy or the degree of interpretive clarification that‘s necessary to construe a prior statute—has remained an elusive, and largely unsuccessful, endeavor in Florida casе law. Compare Nunez, 117 So. 3d at 398 (“We therefore find that the 2012 amendment at issue amounts to a substantive change, not just a legislative clarification, of the PIP statute, especially considering the careful examination that applies in this context and our responsibility to construe the provisions of Florida‘s No-Fault Act liberally in favor of the insured.“), and Dadeland Depot, 945 So. 2d at 1230-31 (declining to apply rule, stating “[w]e are also mindful that the Legislature‘s recent amendment to section 624.155 was passed twenty-three years after that statutory section‘s original enactment, and some six years after the Southern District‘s opinion . . . in which the district court indicated concern as to the correct
interpretation of the term ‘insured’ “), and Betts, 928 So. 2d at 1210 (“[W]e conclude that seven years is too long to view the amendment as merely a clarification of legislative intent.“), and Cooper, 701 So. 2d at 544-45 (“[I]t is inappropriate to use an amendment enacted ten years after the original enactment to clarify original legislative intent.“), and Laforet, 658 So. 2d at 62 (“It would be absurd, however, to consider legislation enacted more than ten years after the original act as a clarification of original intent . . . .“), and Ramcharitar, 35 So. 3d at 98 (declining to apply rule since “the 2003 revision to section 440.10 occurred twenty years after the Court decided Abernathy and some twenty-nine years after the 1974 amendment to section 440.10“), with FINR II, Inc., 221 So. 3d at 1165, 1167 (holding that the “plain language of the [Bert Harris] Act provides that claims under the Act may not be based on government action on another parcel,” but noting that, “[b]ecause reasonable minds may disagree with this interpretation” a statutory amendment passed nearly two decades after the original act “made clear that the Act does not apply to property owners whose parcel is not ‘the subject of and directly impacted by the action of a governmental entity’ ” (quoting ch. 2015-142, § 1, Laws of Fla. (2015))), and State v. Bodden, 877 So. 2d 680, 688 n.13 (Fla. 2004) (noting, in dicta, that a 2003 amendment to section
not apply to surplus lines carriers“), and G.E.L., 875 So. 2d at 1262-63 (construing 2003 amendments to section
If the recent controversy rule is indeed a tool of statutory interpretation, it seems an inconsistent, and awfully slippery, one to wield.
2.
Our court has certainly struggled to gain a firm grip on the rule in the three most recent occasions we‘ve addressed it. In Madison at Soho, 198 So. 3d at 1113-14, for example, a dispute over unpaid condominium assessments revolved around the applicability of accord and satisfaction. (The owner, who was in foreclosure, argued that the condominium association‘s acceptance of its $2,412 check constituted an accord and satisfaction of its unpaid $40,645.70 association debt.) Id. at 1113. Our court had issued a decision in 2014, St. Croix Lane Trust v. St. Croix at Pelican Marsh Condominium Ass‘n, 144 So. 3d 639 (Fla. 2d DCA 2014), holding that section
The Madison at Soho court began its analysis with an invocation to Gay: “Florida courts have ‘the right and the duty’ to consider the legislature‘s recently enacted statute clarifying its intent in a prior version of a statute, which was passed soon after a controversy arose in the interpretation of that original, pre-amended statute.” Id. at 1116 (quoting Ivey v. Chi. Ins. Co., 410 So. 2d 494, 497 (Fla. 1982)). Neither the presumption against retroactivity nor stare decisis stood in the way of that “duty“: we noted that “when the Florida Supreme Court has had occasion to simultaneously consider retroactivity and the recent controversy rule, it has treated the recent controversy rule as an inquiry that is distinct from retroactive application,” and we held that “with the benefit of hindsight and the legislature‘s recent clarifying amendment,” we were free to “revisit our St. Croix Lane Trust decision.” Id. at 1116, 1118. Accord and satisfaction was never intended to be available in these circumstances, as evidenced by the new amendment, for the legislature “clearly intended for section 718.116(3) to function this way all along.” Id. at 1119. More than that, the amendment not only clarified the prior legislation‘s intent—it “abrogated” our holding in St. Croix Lane Trust altogether. Id.
But five years later we took a far more circumspect view of the recent controversy
standing and granted summary judgment in favor of the county. Id. at 844-45. The court construed
But shortly after we issued our first opinion, the legislature approved amendments to the statute, including one that stated “[a] property owner entitled to relief under this section retains such entitlement to pursue the claim if the property owner filed a claim . . . but subsequently relinquishes title to the subject real property before the claim reaches a final resolution.” Id. at 850 (alteration in original) (quoting
A divided panel rejected the former landowner‘s argument that the amendment served as legislative clarification of the prior law. Although we acknowledged courts “may look to a statutory amendment,” id. at 850 (emphasis added), if a statute‘s language is clear, the court was bound to apply the original statute as it was written: “[W]e are not compelled to apply the recent controversy rule to unambiguous statutes,” id. at 851. Since the Bert Harris Act‘s language defining “property owner” was clear, “we need not look at the 2021 amendment to discern a prior legislative intent.” Id. at 850. Furthermore, the Dean Wish majority noted, the pertinent provisions of the Act had remained unchanged for twenty-six years, which “weigh[ed] against exercising our discretion to use the 2021 amendment to interpret the prior meaning of the Act‘s provision.” Id. at 852.
In dissent, Judge Black maintained that the amendment “change[d] the central issue of this case.” Id. at 855. Although the definition of property owner may have remained unchanged for decades, as he pointed out, the ” ‘[s]trict adherence’ to the rule that the court is reluctant to consider subsequent legislation when an amendment is passed long after the original act was made law” is relaxed “when a subsequent amendment is enacted soon after a controversy regarding a statute‘s interpretation has arisen.” Id. at 856-57 (alteration in original) (quoting Dadeland Depot, 945 So. 2d at 1230). According to Judge Black, “[t]he addition to
If Madison at Soho embraced the “duty” to apply the recent controversy rule, Dean Wish held it at a discretionary
Judge Atkinson‘s dissent in Hull catalogued still more misgivings with the rule. First, he argued that the statutory text at issue was clear and unambiguous and that James had properly applied the text‘s “plain and ordinary meaning.” Id. at 466. Irrespective of any latter legislative clarification, the Hull panel was bound to follow James because James was a prior, binding decision of the court. Id. Furthermore, to the extent the rule “is employed in abrogation of the meaning of the text of a pre-amendment version of a statute, the rule is inconsistent with our charge as members of the judicial branch” because it violates the supremacy-of-text principle of statutory interpretation. Id. at 467. In that same vein, he observed that the recent controversy rule “can be used to usurp the authority of the legislature that enacted the text of the applicable version of the statute and supplant those words with an expression of more recent legislative will that is potentially in derogation of the text.” Id. at 468. Finally, Judge Atkinson questioned how the Hull majority could apply “an amended version of a criminal statute to an alleged violation that took place prior to the effective date” of the legislation. Id. at 473.
So in the span of eight years, we have three published decisions from our court that have yielded two split panels, two panels effectively decreeing a prior panel‘s decision dead letter law, one panel construing the recent controversy rule as discretionary, and another two as quasi-mandatory. Madison at Soho, Dean Wish, and Hull‘s respective applications of the recent controversy rule simply cannot be reconciled. Either the rule is mandatory or it‘s discretionary; either its operation hinges on subsequent legislation‘s enactment or on prior legislation‘s ambiguity; either it truly acts as a tool for clarifying legislative intent or it is, truly, “retroactivity by another name.” Hull, 349 So. 3d at 466.
The need for us to proceed en banc has become self-evident.
B.
If the case law discussed above were all there were, we would simply do our best as an en banc court to try to discern a coherent thread in these disparate decisional strands and weave our district‘s conflicting case law into something a little more cogent. But there‘s one thing more
Between 2020 and 2022 (the same period of time, coincidentally, that James and Hull were being decided), the Florida Supreme Court fundamentally changed the framework through which Florida courts interpret statutes. Mr. Crose has put that change front and center in his arguments for affirmance in this appeal.
1.
Traditionally, Florida courts focused their interpretive work on discerning the “legislative intent” of statutory text. What did the legislature mean when it enacted a particular piece of legislation? One of the most frequently cited pronouncements of this approach was set forth in Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984):
Florida case law contains a plethora of rules and extrinsic aids to guide courts in their efforts to discern legislative intent from ambiguously worded statutes. However,
[w]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.
A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 1144, 137 So. 157, 159 (1931). See also Carson v. Miller, 370 So. 2d 10 (Fla. 1979); Ross v. Gore, 48 So. 2d 412 (Fla. 1950). It has also been accurately stated that courts of this state are
without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.
American Bankers Life Assurance Company of Florida v. Williams, 212 So. 2d 777, 778 (Fla. 1st DCA 1968) (emphasis added). It is also true that a literal interpretation of the language of a statute need not be given when to do so would lead to an unreasonable or ridiculous conclusion. Johnson v. Presbyterian Homes of Synod of Florida, Inc., 239 So. 2d 256 (Fla. 1970). Such a departure from the letter of the statute, however, “is sanctioned by the courts only when there are cogent reasons for believing that the letter [of the law] does not accurately disclose the [legislative] intent.” State ex rel. Hanbury v. Tunnicliffe, 98 Fla. 731, 735, 124 So. 279, 281 (1929).
(Alterations in original.)
The “extrinsic aids” available to discern legislative intent were many and varied, as were the exceptions to construing unambiguous statutes according to their text—which came to be perceived as a problem with this approach. Cf. Schoeff v. R.J. Reynolds Tobacco Co., 232 So. 3d 294, 313-14 (Fla. 2017) (Lawson, J., concurring in part and dissenting in part) (“Florida‘s appellate courts have for decades routinely framed the statutory construction task in general (for all cases) as starting with the ‘legislative intent as polestar’ maxim. . . . [B]y focusing first on the more amorphous concept of intent, we are more likely to read into the language our own subjective experiences and biases—assuming unintentionally and subconsciously that the Legislature would have intended the meaning that intuitively strikes us as correct.“).
2.
In 2020, the Florida Supreme Court began to reformulate the paradigm of statutory interpretation. In Ham v. Portfolio Recovery Associates, LLC, 308 So. 3d 942, 946-47 (Fla. 2020), the court was called
In interpreting the statute, we follow the “supremacy-of-text principle“—namely, the principle that “[t]he words of a governing text are of paramount concern, and what they convey, in their context, is what the text means.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 56 (2012). We also adhere to Justice Joseph Story‘s view that “every word employed in [a legal text] is to be expounded in its plain, obvious, and common sense, unless the context furnishes some ground to control, qualify, or enlarge it.” Advisory Op. to Governor re Implementation of Amendment 4, the Voting Restoration Amendment, 288 So. 3d 1070, 1078 (Fla. 2020) (quoting Joseph Story, Commentaries on the Constitution of the United States 157-58 (1833), quoted in Scalia & Garner, Reading Law at 69).
We thus recognize that the goal of interpretation is to arrive at a “fair reading” of the text by “determining the application of [the] text to given facts on the basis of how a reasonable reader, fully competent in the language, would have understood the text at the time it was issued.” Scalia & Garner, Reading Law at 33. This requires a methodical and consistent approach involving “faithful reliance upon the natural or reasonable meanings of language” and “choosing always a meaning that the text will sensibly bear by the fair use of language.” Frederick J. de Sloovère, Textual Interpretation of Statutes, 11 N.Y.U. L.Q. Rev. 538, 541 (1934), quoted in Scalia & Garner, Reading Law at 34.
Id. at 946-47 (alterations in original); see also Levy v. Levy, 326 So. 3d 678, 681 (Fla. 2021) (defining and applying supremacy-of-text method of statutory interpretation).
Two years after Ham, the court both reemphasized the supremacy-of-text principle and unequivocally abandoned the legislative intent approach emblemized in Holly. Addressing a certified question from the United States Court of Appeals for the Eleventh Circuit, the court in Conage v. United States, 346 So. 3d 594, 598 (Fla. 2022), held:
We believe that the Holly principle is misleading and outdated. More recently our Court has said that judges must “exhaust ‘all the textual and structural clues’ ” that bear on the meaning of a disputed text. Alachua County v. Watson, 333 So. 3d 162, 169 (Fla. 2022) (quoting Niz-Chavez v. Garland, ___ U.S. ____, 141 S. Ct. 1474, 1480, 209 L.Ed.2d 433 (2021)). That is because “[t]he plainness or ambiguity of statutory language is determined by reference tо the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S. Ct. 843, 136 L.Ed.2d 808 (1997).
Viewed properly as rules of thumb or guides to interpretation, rather than as inflexible rules, the traditional canons of statutory interpretation can aid the interpretive process from beginning to end (recognizing that some canons, like the rule of lenity, by their own terms come into play only after other interpretive tools have been exhausted). It would be a mistake to think that our law of statutory interpretation requires interpreters
to make a threshold determination of whether a term has a “plain” or “clear” meaning in isolation, without considering the statutory context and without the aid of whatever canons might shed light on the interpretive issues in dispute.
(Alteration in original.)
Since then, the supreme court‘s marching orders for interpreting legislation have been clear: to derive the meaning of statutes, we are to look to the text itself, as understood in its context, not to any purported intent underlying the text. See, e.g., Tsuji v. Fleet, 366 So. 3d 1020, 1025 (Fla. 2023) (“When we construe statutes, ‘our first (and often only) step . . . is to ask what the Legislature actually said in the statute, based upon the common meaning of the words used’ when the statute was enacted.” (quoting Shepard v. State, 259 So. 3d 701, 705 (Fla. 2018))); Coates v. R.J. Reynolds Tobacco Co., 365 So. 3d 353, 354 (Fla. 2023) (“In deciding whether this statute is a prevailing-party statute, we apply the supremacy-of-the-text principle, recognizing that ‘[t]he words of a governing text are of paramount concern, and what they convey, in their context, is what the text means.’ ” (quoting Levy, 326 So. 3d at 681)); Lab. Corp. of Am. v. Davis, 339 So. 3d 318, 323 (Fla. 2022) (“In interpreting a statute, our task is to give effect to the words that the legislature has employed in the statutory text. ‘The words of a governing text are of paramount concern, and what they convey, in their context, is what the text means.’ ” (quoting Ham, 308 So. 3d at 946)).
It is not hyperbole to observe that Conage‘s displacement of Holly and the supreme court‘s recent embrace of the supremacy-of-text principle constituted a paradigm shift in Florida law. In the next section, we carry this evolution in the law forward to consider the case at bar and confront the question of whether the recent controversy rule as a method for discerning legislative intent retains any operative space in the supremacy-of-text model of statutory interpretation.
IV.
Mr. Crose posits that the recent controversy rule and the supremacy-of-text principle are “completely incompatible.” He‘s correct. We explain why in this section.
A.
The recent controversy rule is, root and branch, an offshoot of the legislative intent apprоach to ascertaining statutory meaning. Its pronouncements in the law claim as much. Accord Leftwich, 148 So. 3d at 83 (“[A] statutory amendment may be relevant to a determination of the intent behind the previous statute.” (emphasis added) (citing Lowry, 473 So. 2d at 1250)); Lowry, 473 So. 2d at 1250 (“[T]he amendments contained in the pending bill are expressions of prior and continuing legislative intent.” (emphasis added)); Madison at Soho, 198 So. 3d at 1116-17 (“Because we are applying the legislature‘s amendment, which clarified the legislature‘s intent in a prior version of a statute after a recent controversy, we do not apply retroactivity principles here.” (emphasis added)). As one commentator remarked, applying clarifying amendments to derive the meaning of prior statutes should “be seen as ‘the two branches work[ing] in partnership to accomplish the legislative agenda.’ ” See Pat McDonnel, The Doctrine of Clarifications, 119 Mich. L. Rev. 797, 815 (2021) (alteration in original) (quoting Linda D. Jellum, “Which Is to Be Master,” the Judiciary or the Legislature? When Statutory Directives Violate Separation of Powers, 56 UCLA L. Rev. 837, 882 (2009)). The recent controversy rule can only function if one accepts the notion that legislative meaning (or, if you like, a “legislative
The State, however, will neither bury nor praise the recent controversy rule. In its supplemental briefing it acknowledges that courts have at times wielded the rule too forcefully. Nevertheless, according to the State, a legislative amendment enacted shortly after a controversy arises may still be “probative (though not dispositive) of what the text meant all along,” not unlike “an amicus brief written on behalf of the House and Senate” in a pending case. As the State sees it, “this one-factor-among-many approach to the recent controversy rule is a proper ‘tool’ in the textualist‘s toolkit.”
How can that be? You can use a hammer for all sorts of things, but it‘s meant for hammering. When the job at hand no longer calls for hammering, you shouldn‘t reach for that tool. A court using an atextual, intent-centric tool in a supremacy-of-text analysis would be like a homeowner trying to hammer a lightbulb into a socket to gain more illumination.
The courts fashioned this common law tool for one purpose: to break through statutory text and discover the hidden legislative intent beneath a statute‘s words.8 The recent controversy rule doesn‘t shed light on statutory context. It isn‘t a rule of grammar. And it‘s not a surrogate for а dictionary. While we recognize that the Florida Supreme Court “does not intentionally overrule itself sub silentio,” F.B. v. State, 852 So. 2d 226, 228 (Fla. 2003) (quoting Puryear v. State, 810 So. 2d 901, 905 (Fla. 2002)), when the court fundamentally changes a first-order, long-standing paradigm of widespread application, some of its prior case law may fall by the wayside. We believe that is what has happened to the recent controversy rule.
Guided by the Florida Supreme Court‘s pronouncements in Ham and Conage, we hold that consulting subsequent legislative amendments in response to recent controversies is no longer a viable basis for construing the meaning of a statute.9 We recede from Hull and Madison at Soho to the extent they held to the contrary.
B.
Having so held, we can turn to the merits of Mr. Crose‘s case. As we observed at the outset, Mr. Crose‘s circumstances, as well as his argument about the proper interpretation of the preamendment version of
1.
We think it was. Again, the prior, applicable version of the statute tethered sex
The use of the definite article “the,” in this context, clearly and unambiguously indicated a holistic, collective meaning for “sanction.” Release from “the sanction imposed” meant just that: release from “the sanction” the State had imposed, not just a particular piece of that sanction. See Nielsen v. Preap, 139 S. Ct. 954, 965 (2019) (“Here grammar and usage establish that ‘the’ is ‘a function word . . . indicat[ing] that a following noun or noun equivalent is definite or has been previously specified by context.’ ” (alterations in original) (quoting Merriam-Webster‘s Collegiate Dictionary 1294 (11th ed. 2005))); Covey v. Shaffer, 277 So. 3d 694, 696-97 (Fla. 2d DCA 2019) (“The indefinite article a has an accepted sense of ‘any,’ while the definite article, the, used before a noun specifies a definite and specific noun, as opposed to any member of a class.” (quoting Myers v. State, 696 So. 2d 893, 900 (Fla. 4th DCA 1997))). That construction is not only evinced by the commonly understood meaning of “the” when applied to a term with multiple aspects; it is confirmed textually by the remainder of the statute, which switches to the indefinite article “a” to list the various constituent components a “sanction” may comprise. See Famiglio v. Famiglio, 279 So. 3d 736, 741 (Fla. 2d DCA 2019) (“The purpose of the indefinite article is to indicate a noun that is, in some way, variable, unidentified, or unspecified.” (citing Retreat at Port of Islands, LLC v. Port of Islands Resort Hotel Condo. Ass‘n, 181 So. 3d 531, 533 (Fla. 2d DCA 2015))).
Moreover, James’ interpretation avoided the ambiguity an alternative construction would have foisted: if registration is required following release from any part of “the sanction,” which of the several and distinct sanctions specifically defined in the statute becomes “the sanction” for purposes of the registration requirement? Cf. State v. Hobbs, 974 So. 2d 1119, 1121 (Fla. 5th DCA 2008) (noting that statutory construction canons “should only come into play when it is necessary to construe an ambiguous statute, not to create an ambiguity in a clearly worded statute” (citing Jacobo v. Bd. of Trs. of Miami Police, 788 So. 2d 362, 363 (Fla. 3d DCA 2001))). Finally, as James observed, the legislature had, elsewhere, enacted an automatic designation provision in the Sexual Predator Act, but not in
Is James’ construction consistent with what a subsequent legislature declared its predecessor had originally intended? Apparently not. It is, however, entirely consistent with the actual words that prior legislature enacted.10 Like the Florida Supreme Court, in this case “we need only resort to what Justice Thomas has described as the ‘one, cardinal canon [of construction] before all others‘—that is, we ‘presume that a legislature says in a statute what it means and means in a statute what it says there.’ ” Page v. Deutsche Bank Tr. Co. Ams., 308 So. 3d 953, 958 (Fla. 2020) (quoting Conn. Nat‘l Bank v. Germain, 503 U.S. 249, 253-54 (1992)). The prior legislature had tied sex offender registration to a defendant‘s release from “the sanction imposed,” not “a sanction” or “any sanction.” Because that is what the words of the statute conveyed, that is what the text of the statute meant. See Ham, 308 So. 3d at 946; Allstate Mortg. Corp. of Fla. v. Strasser, 286 So. 2d 201, 202-03 (Fla. 1973) (observing that the legislature “is presumed to know the meanings of words and rules of grammar” (citing State ex rel. Hanbury v. Tunnicliffe, 124 So. 279 (Fla. 1929))).
2.
In its supplemental briefing, the State argues that when
First and foremost, as we‘ve already explained, “the” does not usually mean the same thing as “any” or “a.” Definite articles and indefinite articles typically connote different meanings, and they serve very different communicative functions. See, e.g., Paul W. Lovinger, The Penguin Dictionary of American English Usage and Style 1, 426 (2000) (”A or an goes before a word or phrase denoting a person or thing (noun) but not a specific one. . . . The definite article, the, . . . usually introduces a particular thing or individual group, one that was mentioned before or whose existence is known or presumed to be known.“). While context is always important and can often provide clarification, it‘s not a talisman that can be invoked to transform the ordinary functions of articles in English grammar.
Second, it must be observed that
Fourth, even if
We can check this plain and ordinary definition against what the proverbial man or woman “on the street” would say. If he or she were told that a criminal defendant had been sentenced to prison, probation, and the payment of a fine and that proverbial person were then asked to describe
Fifth and finally, if we were inclined to accept the State‘s construction of “the sanction imposed,” it would, at most, amount to a valid, competing interpretation of the statute‘s text. We would then find ourselves with a “[r]un-of-the-mill ambiguity regarding particular applications of a criminal statute,” Martin v. State, 259 So. 3d 733, 741 (Fla. 2018)—between the State‘s approach and James’—and the rule of lenity would compel us to follow James as the more lenient application. See
3.
Mr. Crose, who was still completing the probation portion of his criminal sanction, wasn‘t required to register as a sex offender at the time of his alleged offense under the operative, preamendment version of
V.
As we acknowledged earlier, our holding today presupposes that the supremacy-of-text principle has supplanted the recent controversy rule. But if we‘re mistaken, if the recent controversy rule somehow retains some utility for construing the meaning of statutory text, we would still need to contend with several concerns this case raises. We will canvass those concerns in the following subsections and explain why these problems likewise preclude us from applying the amended statute‘s purported clarification to the case at bar.
A.
This is a criminal case. Both the federal and state constitutions generally forbid the ex post facto application of criminal laws. See
Florida‘s recent controversy rule, however, is arguably a creature of both the legislature and the judiciary‘s making. After all, absent the impetus of a lеgislative amendment enacted in response to a controversy, a court can‘t invoke this tool of statutory construction; and the case at bar (in which the amendment at issue explicitly referenced our James decision, which the Hull panel then cited) exemplifies just how enmeshed the two branches can become when the rule is invoked.
Which constitutional provision the recent controversy rule implicates might pose an interesting question, but we need not linger too long on it. In the end, the two analyses—whether a legislature‘s enactment of a retrospective law violates the ex post facto clause or whether a court‘s retrospective application of legislation violates the due process clause—both revolve around the same center of gravity: a lack of fair notice. See Lynce, 519 U.S. at 441 (“We have explained that such [retroactive] laws implicate the central concerns of the Ex Post Facto
It is true, as we discussed in section III(A), that Florida courts have applied the recent controversy rule to construe criminal statutes notwithstanding ex post facto objections. See, e.g., Leftwich, 148 So. 3d at 84; Hull, 349 So. 3d at 464; Burgos, 765 So. 2d at 968. More often than not, the constitutional concern was assuaged by the
Now one could argue (and some have) that that justification is nothing more than a fig leaf covering a retroactive application of a criminal statute. See, e.g., Leftwich, 148 So. 3d at 89 (Quince, J., dissenting) (maintaining that the statutory amendment at issue was “more than a mere clarification of the legislature‘s original intent,” that “[t]his language supports the conclusion that the amendment expanded the exception to all habitual offenders,” and that “[t]his expansion of the exceptions contained in the original statute results in the 1992 amendment being applied retroactively to Leftwich“); Hull, 349 So. 3d at 466 (Atkinson, J., dissenting) (“In instances where the recent controversy rule is applied to give effect to a legislature‘s subsequent pronouncement of intent that is not supported by the version of the statute that was in effect at the time of its alleged violation, the rule is merely retroactivity by another name.“). Regardless of how substantive the cover of “clarification” ever was, in the advent of Ham and Conage, a post hoc, extratextual source such as a subsequent amendment to a criminal statute, can no longer be a viable tool to dеrive textual meaning. Not when we are supposed to “strive to determine the text‘s objective meaning through ‘the application of [the] text to given facts on the basis of how a reasonable reader, fully competent in the language, would have understood the text at the time it was issued.’ ” Levy, 326 So. 3d at 681 (alteration in original) (emphasis added) (quoting Antonin Scalia & Bryan A. Garner, Reading Law at 33); see also Niz-Chavez v. Garland, 141 S. Ct. 1474, 1480 (2021) (“When called on to resolve a dispute over a statute‘s meaning, this Court normally seeks to afford the law‘s terms their ordinary meaning at the time Congress adopted them.” (citing Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067 (2018))); Kleparek, 634 So. 2d at 1148 (“[I]t has been wisely observed by a judge that a legislature—not identical in body as a previous one—might be logically hard pressed to say what the earlier legislature intended.“). If the only way the recent controversy rule withstands ex post facto scrutiny in a criminal case is by acting as a means of clarifying intent and if that function has effectively been withdrawn—as we believe it has—then construing the text of a statute according to the words of the statute‘s future amendments winds up being “retroactivity by another name.” See Hull, 349 So. 3d at 466 (Atkinson, J., dissenting).
Mr. Crose‘s case illustrates this point. Under the prior text of
B.
If a subsequent legislature‘s enactments can somehow inform a supremacy-of-text‘s
“It is emphatically the province and the duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. 137, 177 (1803). There can be no question but that the interpretation of legislative acts in disputed cases lies at the very core of the judiciary‘s duty. See, e.g., Bush v. Schiavo, 885 So. 2d 321, 330 (Fla. 2004) (“Under the express separation of powers provision in our state constitution, ‘the judiciary is a coequal branch of the Florida government vested with the sole authority to exercise the judicial power’ . . . .” (quoting Chiles v. Child. A, B, C, D, E, & F, 589 So. 2d 260, 268-69 (Fla. 1991))); Fla. Dep‘t of Revenue v. Fla. Mun. Power Agency, 789 So. 2d 320, 324 (Fla. 2001) (“A court‘s function is to interpret statutes as they are written and give effect to each word in the statute.“); Getzen v. Sumter County, 103 So. 104, 105 (Fla. 1925) (“In order that the state government may be one of legal regulations lawfully administered, the Constitution provides for a law enacting power, a law executing power, and also for a law interpreting power, i.e., the judicial power.“). It is equally inarguable that that function encompasses the power of superior tribunals to review the rulings of lower courts within their jurisdiction—a power expressly conferred to those tribunals by our constitution. See
When implemented, though, the recent controversy rule shunts that interpretive power over to the legislative branch. For it both facilitates and effectuates an alternative form of judicial review by the legislature. Of course, the legislature is generally free to change the law in such a way that its prospective application will contravene a prior judicial interpretation of the prior law. But the recent controversy rule, through the guise of clarification, accomplishes much more than that.
The closing lines of Madison at Soho and Hull give away the game. In both cases, we deemed a legislative amendment to have “abrogated” one of our prior holdings. See Hull, 349 So. 3d at 465 (“Recognizing—as we must—the legislature‘s abrogation
In essence, the recent controversy rule enables the legislature (or, more accurately, one particular legislative session) to act as a surrogate court of review. That is not a role for the legislature to assume in the system established under our state constitution. See
C.
It could be argued that the legislature‘s assumption of a reviewing court‘s role under the aegis of the recent controversy rule passes separation of powers muster because the rule is only ever applied by a court. Assuming that‘s true (by ignoring the legislature‘s essential role in the recent controversy rule‘s operation), we would then have to contend with yet another problem this rule raises. When a panel of an appellate court invokes the rule to reassess a prior panel‘s opinion in light of a legislative amendment (as this court did in Hull and Madison at Soho), we have a situation where one three-judge panel is effectively overruling another.
It is well settled in Florida that a three-judge panel of a district court of appeal is not at liberty to overrule or recede from a prior panel‘s controlling decision on the same point of law. See, e.g., Wood v. Fraser, 677 So. 2d 15, 18 (Fla. 2d DCA 1996) (“More important, because Arango was the opinion of a three-judge panel, that panel, consistent with the long-standing policy of this court, would not have receded from Moore, even if it were inclined to do so, without first seeking en banc consideration from the full court pursuant to Florida
We‘ve found no Florida appellate court opinion that has ever acknowledged, much less reconciled, this awkward facet of the recent controversy rule‘s application. The “abrogation” discussed in the prior subsection doesn‘t wave the problem away. If the legislature can‘t act as a court of review, it follows that the only organic authority for abrogating a panel decision under the recent controversy rule is another panel‘s decision. Having considered the rule‘s effect more fully, we are now of the mind that if the recent controversy rule retains any vitality in the advent of Ham and Conage (and, again, we don‘t think it does), and if the rule‘s application in a case would effectively reverse, recede from, or declare a prior panel‘s decision abrogated on the same point of law, then only the court sitting en banc can apply the rule. For this reason as well, we would recede from Hull and Madison at Soho insofar as they represented an improper arrogation of en banc authority by a three-judge panel of the court.
VI.
We hold that the recent controversy rule—in which a court considers subsequent legislative amendments to construe the meaning of prior statutory text—is no longer a viable method of construing statutory text in the wake of the Florida Supreme Court‘s decisions in Ham and Conage.14 We recede from Hull and
We return to the textual interpretation James gave the prior version of
Having so held, we acknowledge that our decision today calls into question the continued effect of certain portions of supreme court precedents, including Lowry, Lanier, and Leftwich. We, therefore, certify the following question of great public importance to the Florida Supreme Court pursuant to
CAN A COURT CONSIDER A CRIMINAL STATUTE‘S SUBSEQUENT AMENDMENTS TO CLARIFY A PRIOR VERSION OF THE CRIMINAL STATUTE CONSISTENT WITH THE SUPREMACY-OF-TEXT PRINCIPLE SET FORTH IN HAM V. PORTFOLIO RECOVERY ASSOCIATES, 308 SO. 3D 942, 946 (FLA. 2020), AND CONAGE V. UNITED STATES, 346 SO. 3D 594 (FLA. 2022)?
We have answered the question in the negative and affirm the order below accordingly.
Affirmed; question certified.
SLEET, C.J., and NORTHCUTT, CASANUEVA, KHOUZAM, ROTHSTEIN-YOUAKIM, and LABRIT, JJ., Concur.
SILBERMAN, J., Concurs specially with an opinion in which LABRIT, J., Concurs.
LaROSE, J., Concurs in result only with an opinion in which KELLY, VILLANTI, MORRIS, BLACK, and SMITH, JJ., Concur.
ATKINSON, J., Concurs in result only with opinion.
SILBERMAN, J., Specially concurring.
I fully concur with the majority opinion and write solely to expand on footnote 10, which mentions the State‘s concession that the absurdity doctrine does not apply here. In our order granting the State‘s motion to allow en banc briefing, we directed the parties to address “[w]hether the ‘absurdity doctrine’ applies and compels a particular outcome. See State v. Lewars, 259 So. 3d 793, 800 (Fla. 2018); Maddox v. State, 923 So. 2d 442, 447-48, 453 (Fla. 2006).”
In Maddox, the Florida Supreme Court explained the absurdity doctrine, stating that “although the strict meaning of the words in the abstract employed by the Legislature when it drafted” a statute may support a particular outcome, “such a sterile literal interpretation should not be adhered to when it would lead to absurd results.” 923 So. 2d at 448; see also Raik v. Dep‘t of Legal Affs., Bureau of Victim Comp., 344 So. 3d 540, 549 (Fla. 1st DCA 2022) (“In certain circumstances, the absurdity doctrine may be used to justify departures from the general rule that courts will apply a statute‘s plain language.” (quoting State v. Hackley, 95 So. 3d 92, 95 (Fla. 2012))). In Lewars, the Florida Supreme Court reiterated that a statute need not be given a literal interpretation when doing so would result in an unreasonable or ridiculous conclusion; however, the absurdity doctrine should not be used in circumstances which require a court to rewrite a statute instead of to correct a technical or ministerial error. 259 So. 3d at 800-01.
Here, neither party argued that the absurdity doctrine should apply. The State responded to our order, asserting that the doctrine does not apply “but the related concept of construing a law consistent with its evident purpose does.” The State maintained that the absurdity “doctrine allows a court to deviate from the otherwise plain meaning of a text only ‘if failing to do so would result in a disposition that no reasonable person could approve,’ ” quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 234 (2012), and citing to Lewars, 259 So. 3d at 800-02. Unsurprisingly, Mr. Crose also responded that the absurdity doctrine does not apply here, relying on his argument that the trial court correctly analyzed the statutory language.
Still, it is not clear what policy reasons would support the conclusion that a sex offender who is released from prison would not be required to register and provide information as required by
LABRIT, J., Concurs.
LaROSE, J., Specially concurring in result only.
I concur in the result reached by the majority. Because Mr. Crose had not been released from his entire sanction, see
The majority offers a thoughtful and thorough examination of the supremacy-of-the-text doctrine and the recent controversy rule. Respectfully, however, I believe that the majority poses a false choice. To my mind, the majority needlessly jettisons the recent controversy rule as so much jetsam. Because of the supremacy-of-the-text doctrine, the majority, in my view, seemingly concludes that the recent controversy rule no longer holds sway. As
Maybe so; but on the record before us, I see no need to make the choice offered by the majority. The statute under which the State charged Mr. Crose is clear and unambiguous. Consequently, courts should “not look behind the statute‘s plain language for legislative intent or resort to rules of statutory construction to ascertain intent.” Kasischke v. State, 991 So. 2d 803, 807 (Fla. 2008) (alteration in original) (quoting Borden v. E. Eur. Ins. Co., 921 So. 2d 587, 595 (Fla. 2006)). The supremacy-of-the-text doctrine compels affirmance. See, e.g., Savona v. Prudential Ins. Co. of Am., 648 So. 2d 705, 707 (Fla. 1995) (“Because the language of the statute is clear, we do not look beyond it to discern legislative intent.“); Dean Wish, LLC v. Lee County, 326 So. 3d 840, 850 (Fla. 2d DCA 2021); Ellsworth v. State, 89 So. 3d 1076, 1078 (Fla. 2d DCA 2012) (“When the statutory language is clear, courts may not explore legislative history nor apply canons of statutory construction.“); Fla. Retail Fed‘n, Inc. v. City of Coral Gables, 282 So. 3d 889, 895-96 (Fla. 3d DCA 2019) (“There is no need to resort to rules of statutory construction because the statutory text is clear.“), review denied, No. SC19-1798, 2020 WL 710303 (Fla. Feb. 12, 2020). Our work is done.
Although I appreciate the majority‘s efforts to resolve an apparent conundrum that has, by all accounts, bedeviled many Florida courts, Mr. Crose‘s case, quite simply, does not compel us to trek down a path we need not tread. See Amy Coney Barrett, Substantive Canons and Faithful Agency, B.U. L. Rev, 109, 112 (2010) (“The rival theories [of statutory interpretation] in this regard were - and remain - purposivism and textualism. Purposivism, the classical approach to statutory interpretation, claims that a judge should be faithful to Congress‘s presumed intent rather than to the statutory text when the two appear to diverge. Textualism, by contrast, maintains that the statutory text is the only reliable indication of congressional intent. The defining tenet of textualism is the belief that it is impossible to know whether Congress would have drafted the statute differently if it had anticipated the situation before the court. The legislative process is path-dependent and riddled with compromise.” (footnote omitted)).
I cannot ignore the fact that the legislature amended
The recent controversy rule is no more than an interpretive tool in a court‘s toolbox to discern statutory meaning. But a court should not apply the rule in a wooden fashion. Indeed, our supreme court urges caution. A legislature cannot retroactively nullify the clear and unambiguous language used by a prior legislature to express its current intent. Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins., 945 So. 2d 1216, 1230 (Fla. 2006) (recognizing that the Florida Supreme Court has “been reluctant to look at subsequent amendments to determine legislative intent when the language of a statute is clear and unambiguous“); Kaisner v. Kolb, 543 So. 2d 732, 738 (Fla. 1989) (“Subsequent legislatures, in the guise of ‘clarification,’ cannot nullify retroactively what a prior legislature clearly intended.“).
This is particularly important for Mr. Crose. The State‘s position presents serious concerns about ex post facto laws, laws prohibited by our national and State constitutions. See
The statute before us is clear and unambiguous. Thus, the text compels the majority‘s result. Having said that, however, I cannot conclude that there can never be a place for the recent controversy rule. To say it again, the rule is a tool of interpretation.
One may imagine a situation where a statutory text is less than clear. See, e.g., Kasischke, 991 So. 2d at 807 (determining, in five-to-two vote that “[t]he plain language of the statute could be construed in at least four ways,” while the two dissenting justices, writing separately, asserted that the plain meaning of the statute was unambiguous). All must agree that “[s]ince words, by their nature, are imprecise instruments, . . . [statutes] . . . may have gray areas at the margins.” United States v. Barnes, 295 F.3d 1354, 1366 (D.C. Cir. 2002) (quoting U.S. v. Nason, 269 F.3d 10, 22 (1st Cir. 2001)). A panoply of interpretative tools is available to a reviewing court. See Karl N. Llewellyn,
A minimalist approach to the law is prudent. I would affirm the trial court‘s order based on the supremacy-of-the-text doctrine. I would recede from Hull and Madison at Soho to the extent they suggest that the recent controversy rule may be applied to otherwise clear and unambiguous statutory text. Delving further into the continuing vitality of the recent controversy rule takes us well beyond what we need to do. This I cannot abide. See PDK Lab‘ys, Inc. v. U.S. D.E.A., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment) (observing that judicial restraint cautions that when “it is not necessary to decide more, it is necessary not to decide more“).
KELLY, VILLANTI, MORRIS, BLACK, and SMITH, JJ., Concur.
ATKINSON, Judge, Concurring in result.
I concur in the result reached by the majority. The recent controversy rule is incompatible with our role as members of the judiciary, which, when it comes to the interpretation of legal texts, requires us to apply the language in accordance with the ordinary meaning of the words in their context.
To the extent [the recent controversy rule] is employed in abrogation of the meaning of the text of a pre-amendment version of a statute, the rule is inconsistent with our charge as members of the judicial branch. “In determining the meaning of a statute, we adhere to the supremacy-of-the-text principle—a principle recognizing that ‘[t]he words of a governing text are of paramount concern, and what they convey, in their context, is what the text means.’ ” Levy v. Levy, 326 So. 3d 678, 681 (Fla. 2021) (alteration in original) (emphasis added) (quoting Page v. Deutsche Bank Tr. Co. Ams., 308 So. 3d 953, 958 (Fla. 2020)); CCM Pathfinder Palm Harbor Mgmt., LLC v. Unknown Heirs of Gendron, 198 So. 3d 3, 9 (Fla. 2d DCA 2015) (“[I]t is this court‘s role to apply the law as written . . . .“).
Hull v. State, 349 So. 3d 459, 467 (Fla. 2d DCA 2022) (Atkinson, J., dissenting). A failure to carry out this role by applying the recent controversy rule would jeopardize the rule of law because we would be substituting what the text says with what we conclude it should say based on a subsequent pronouncement of legislative intent. See id. (Atkinson, J., dissenting) (“The majority relies on the recent controversy rule to improperly implement a retroactive change to the plain and ordinary meaning of the text of a statute as it read at the time of the alleged crime. The plain and ordinary meaning of the language of the statute in context, as it would be understood when it was enacted, is the law. Courts may not apply the law in derogation of that meaning.” (citations omitted)); cf. State v. Peraza, 259 So. 3d 728, 733 (Fla. 2018) (“Because even a clearly discernible Legislative intent cannot change the meaning of a plainly worded statute, it would only confuse matters to focus on what the Legislature might have intended rather than what the statute actually
Yet it does. As the majority points out, the recent controversy rule has a long history of usage by Florida appellate courts. In this court‘s most recent discussion of the rule, the majority in Hull considered itself bound to follow the rule. See id. at 464, 464 n.6 (majority opinion) (concluding that “we are bound to consider the legislature‘s clarified intent” under the recent controversy rule because it is a “settled facet of the law in our State“). I dissented and avoided the question of whether the recent controversy rule is precedential because prior cases construing the rule from the supreme court and this court were inapposite. See id. at 465 (Atkinson, J., dissenting) (“This court is not bound by precedent to apply the rule under the circumstances of this case . . . .“). While the majority in this case avoids directly resolving the dichotomy it frames between the rule being “discretionary” or “quasi-mandatory,” it tacitly concludes that the rule is binding precedent because it employs another purportedly binding doctrine to overrule it. I find common cause with much of the criticism leveled in the majority opinion against the recent controversy rule. However, I am unable to join in the effort to drive a stake in the heart of the dоctrine because the logic employed by the majority to effect the doctrine‘s demise is flawed.
The majority‘s reason for overruling the recent controversy rule is what it characterizes as a “recent embrace” of the supremacy-of-text principle for interpreting statutes, characterizing the embrace as so significant that it constitutes a “paradigm shift in Florida law.” The majority reasons that the paradigm shift, combined with the Florida Supreme Court‘s Conage decision, has rendered the recent controversy rule incompatible with this new regime and resulted in the Florida Supreme Court overruling the recent controversy rule sub silentio. While it is reasonable to observe that a paradigmatic shift has occurred, it is a separate question whether this recent “embrace” constitutes binding precedent that overruled past decisional law implementing the recent controversy rule such that the interpretive method is thenceforth unavailable to all inferior court judges—as is the question of at what point in time, if ever, this overruling occurred. The majority then contends that even if the recent controversy rule was not overruled, the shift in statutory interpretation now gives life to previously inapplicable constitutional concerns of ex post facto laws and due process violations. See infra note 16.
It is inaccurate to describe the supreme court‘s “embrace” of the supremacy-of-text principle as “recent” when that approach to the interpretation of legal texts had already been espoused in several opinions of the supreme court at the time Hull was decided in 2022. See Sheffield v. R.J. Reynolds Tobacco Co., 329 So. 3d 114, 119 (Fla. 2021); Levy, 326 So. 3d at 681; Page, 308 So. 3d at 958; Ham v. Portfolio Recovery Assocs., LLC, 308 So. 3d 942, 946-47 (Fla. 2020); Advisory Op. to Governor re Implementation of Amend. 4, the Voting Restoration Amend., 288 So. 3d 1070, 1078 (Fla. 2020). The majority even cites case law predating Hull for the proposition that the supreme court “has now instructed us to ‘follow the supremacy-of-text principle.’ ”
putative “incompatibility” between the two doctrines claimed by the majority in this case was extant at the time Hull was decided.
To be clear, I do not argue that the two doctrines are not incompatible; to the contrary, when a judge seizes upon what he or she perceives as some indicia of legislative intent and favors it over the ordinary meaning of the text of the document being interpreted, the legislative-intent-as-polestar method and the supremacy-of-text principle are irreconcilable. It was for parallel reasons that I asserted in my dissenting opinion in Hull that the recent controversy rule—which is itself, to paraphrase the majority‘s astute observation, premised on the supremacy of legislative intent—is incompatible with the supremacy-of-text philosophy. Indeed, two competing things cannot both be supreme when they are in conflict. And yet, even according to the majority‘s rationale for the disparate treatment of the recent controversy rule in Hull and this case, both the legislative-intent-as-polestar methodology and the supremacy-of-text principle had been espoused by, and formed the basis of, supreme court decisions in the era that persisted up until the Conage case was decided. See, e.g., Ham, 308 So. 3d at 946 (“In interpreting the statute, we follow the ‘supremacy-of-text principle‘—namely, the principle that ‘[t]he words of a governing text are of paramount concern, and what they convey, in their context, is what the text means.’ ” (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 56 (2012))); McCloud v. State, 260 So. 3d 911, 914 (Fla. 2018) (reasoning the purpose of statutory interpretation “is to effectuate the Legislature‘s intent because ‘legislative intent is the polestar that guides a court‘s statutory construction analysis.’ ” (quoting State v. J.M., 824 So. 2d 105, 109 (Fla. 2002))). The explanation for this coexistence of incompatible interpretive methodologies is not perplexing (and indeed is not historically atypical) if one considers the methodologies as merely competing tools of interpretation rather than binding precedential pronouncements of the high court. Because the majority takes the latter view, a line of demarcation was logically necessary to justify the disparate treatment of the recent controversy rule as it was applied in the Hull decision and in this case.
As discussed, the unignorable volume of pre-Hull Florida Supreme Court decisions relying on the supremacy-of-tеxt principle poses a challenge for the majority‘s rationale. See, e.g., Sheffield, 329 So. 3d at 119; Levy, 326 So. 3d at 681; Page, 308 So. 3d at 958; Ham, 308 So. 3d at 946–47; Advisory Op. to Governor re Implementation of Amend. 4, 288 So. 3d at 1078. The majority attempts to elide this chronological problem
[J]udges must exhaust all the textual and structural clues that bear on the meaning of a disputed text. That is because the plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.
. . . It would be a mistake to think that our law of statutory interpretation requires interpreters to make a threshold determination of whether a term has a “plain” or “clear” meaning in isolation, without considering the statutory context and without the aid of whatever canons might shed light on the interpretive issues in dispute.
Id. (citations omitted) (first quoting Alachua County v. Watson, 333 So. 3d 162, 169 (Fla. 2022); then quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)); see Lab‘y Corp. of Am. v. Davis, 339 So. 3d 318, 323 (Fla. 2022) (explaining that, under the supremacy of text principle, one looks to the words and the context in which they are used); Sheffield, 329 So. 3d at 114 (same); Levy, 326 So. 3d at 681 (same); State v. McKenzie, 331 So. 3d 666, 670–71 (Fla. 2021) (same); Page, 308 So. 3d at 958 (same); Ham, 308 So. 3d at 946–47 (same); Advisory Op. to Governor re Implementation of Amend. 4, 288 So. 3d at 1078 (same).
The majority overstates the Conage opinion. Conage solely addressed an often-cited principle from the supreme court‘s 1984 Holly decision that misled courts into analyzing the meaning of a disputed text in isolation without considering the context of that text. 346 So. 3d at 598. The supreme court concluded that courts are not limited to reviewing disputed words in isolation when determining whether they are clear or ambiguous and abrogated Holly to the extent it required courts to do so, instead authorizing courts to consider the disputed text, its context, and any helpful canons of interpretation in evaluating whether a particular word or phrase has a clear meaning or is ambiguous. Id.
One need not minimize the undeniable importance of Conage to conclude that it had nothing to do with legislative intent and that there is no reasonаble way to read the opinion to conclude that it abrogated an entire legislative-intent approach to statutory interpretation. By reaffirming that context is always relevant to interpreting legal texts and clarifying that ascertainment of the meaning of the text of a statute by resort to the canons of construction
Eliding the arbitrariness of its selection of Conage as the demarcation between the era in which the recent controversy rule was mandatory and the new era in which the rule is now verboten, the majority protesteth too much, methinks, when it informs the reader that “it is not hyperbole to observe that Conage‘s displacement of Holly and the supreme court‘s recent embrace of the supremacy-of-text principle constituted a paradigm shift in Florida law.” The majority‘s selection of Conage as the pertinent fulcrum point between one method of statutory interpretation and another to support its rationale cannot be justified as anything more than an arbitrarily drawn line in the shifting sand of interpretive jurisprudence.
Moreover, even if, for the sake of analysis, Conage could be considered a relevant line of demarcation, it is also difficult to conclude that the case overruled the recent controversy rule because it is not clear that the supremacy-of-text principle, a methodological precedent, is entitled to binding precedential effect under stare decisis. See, e.g., Kisor v. Wilkie, 139 S. Ct. 2400, 2444 (2019) (Gorsuch, J., concurring) (“[W]e do not regard statements in our opinions about such generally applicable interpretive methods, like the proper weight to afford historical practice in constitutional cases or legislative history in statutory cases, as binding future Justices with the full force of horizontal stare decisis.” (first citing Evan J. Criddle & Glen Staszewski, Against Methodological Stare Decisis, 102 Geo. L.J. 1573, 1577 & n.12 (2014); then citing Chad M. Oldfather, Methodological Stare Decisis and Constitutional Interpretation, in United States Supreme Court Precedent 135, 135–36 (Christopher J. Peters ed. 2013))); Cabeda v. Att‘y Gen. of U.S., 971 F.3d 165, 171 n.4 (3d Cir. 2020) (“[S]hifting interpretive methodologies are not usually viewed as carrying the force of stare decisis, at least not when the decisions employing them do not purport to overrule past precedent. We have noted that the Supreme Court ‘typically avoids methodological stare decisis,’ while observing that ‘federal courts do not treat interpretive methodology as a traditional form of law.’ ” (citation omitted) (quoting Am. Farm Bureau Fed‘n v. U.S. E.P.A., 792 F.3d 281, 307 n.8 (3d Cir. 2015))).
In other words, inferior courts are arguably no more obligated to adhere to the supremacy-of-text principle espoused by current and recent members of the Florida Supreme Court than were inferior courts required to follow the legislative-intent-as-polestar philosophy that was espoused by past members of the Florida Supreme Court. I do not believe that inferior court judges were compelled to follow the “polestar” of “legislative intent,” illuminated by the Florida Supreme Court during the era in which adherents to that methodology prevailed among its ranks. See, e.g., McCloud, 260 So. 3d at 914. If inferior court judges during that time could not in intellectual honesty bend to the notion that perceptions of legislative intent should be their guide because they in good conscience thought the text to be supreme, they were free to hew to the ordinary meaning of the text despite supreme court case law pronouncing that legislative intent should be paramount. Therefore, despite my belief that the supremacy-of-text principle is consistent with the proper role of judges in our tripartite system of government—and that a legislative-intent-as-polestar methodology is inconsistent with that role because of its propensity to subordinate the meaning of the text itself—I cannot conclude that supreme court opinions relying on the supremacy-of-text principle constitute binding precedent compelling inferior courts to forever and under all circumstances foreswear legislative intent as relevant to the interpretation of statutes.
[M]ethodological decisions are frequently intertwined with a judge‘s most fundamental beliefs and commitments about the rule of law and democracy, and the application of stare decisis to interpretive methodology would in principle require judges to make what they view as unconscionable decisions. Once agаin, it is one thing to require judges to follow binding substantive rules with which they disagree, but it is another thing to require judges to follow higher-order rules that force them to make decisions on issues of first impression in a manner that is contrary to their fundamental understanding of the role of federal courts in a constitutional democracy. It is hard to believe, for example, that Justice Scalia would agree to decide every future statutory case that comes before the Court in a purposive fashion merely because Justice Breyer was able to persuade a five-Justice majority to adopt this approach in the first case decided under a regime of methodological stare decisis.
Criddle & Staszewski, supra, at 1595 (arguing that “federal courts should resist the siren song of methodological stare decisis“).
The legislative-intent-as-polestar philosophy that the majority observantly describes as regnant in a bygone era and the supremacy-of-text principle that it identifies as the now-prevailing method in light of recent supreme court case law share one thing in common: they are both methodological precedents of the variety that courts and commentators have historically considered to be outside the ambit of stare decisis. They are interpretive tools, the employment of which does not constitute binding precedent. Cf. Kisor, 139 S. Ct. at 2444 (Gorsuch, J., concurring) (identifying the “interpretive methodology” at issue as “an abstract default rule of interpretive methodology that settles nothing of its own force,” “[i]n contrast to precedents that fix the meaning of particular statutes and generate reliance interests in the process” (emphasis in original)). That I and others celebrate the fall of the former and the rise of the latter as a salutary development in high court jurisprudence should not give way to the temptation to lock in perceived victories as something more than they are. That sword has two edges, and a welcome supreme court trend toward adherence to a fair reading of the text itself and away from slippery notions of legislative intent could easily be reversed in the future by the vicissitudes of court membership.
The same criticism against those interpretive methods as subject to stare decisis can arguably be leveled at the recent controversy rule itself—that is, the rule is arguably methodological precedent that is not binding on subsequent panels or inferior courts. As I noted in my dissenting
Admittedly, the argument for the supremacy-of-text principle and other methodological precedents as binding precedent is not completely bereft of merit—or appeal—and certainly not without its thoughtful and learned proponents (which, of course, include my colleagues in the majority of this case). See, e.g., Aaron-Andrew P. Bruhl, Eager to Follow: Methodological Precedent in Statutory Interpretation, 99 N.C. L. Rev. 101, 102 (2020) (describing “the hope of [methodological precedent] advocates . . . that making interpretive methodology into binding law will reduce the much lamented unpredictability of statutory interpretation“). The Florida Supreme Court and some of its members have occasionally employed authoritative language when describing a preferred interpretive methodology, which such admonitions could be perceived as (or mistaken for) the setting of binding precedent. See, e.g., State Farm Mut. Auto. Ins. Co. v. Shands Jacksonville Med. Ctr., 210 So. 3d 1224, 1229 (Fla. 2017) (“[W]e must consider the statute as a whole, including the evil to be corrected, the language, the title, and history of its enactment, and the state of law already in existence on the statute.” (emphasis added) (quoting Fla. Dep‘t of Env‘t Prot. v. ContractPoint Fla. Parks, LLC, 986 So. 2d 1260, 1266 (Fla. 2008))); Metro. Cas. Ins. Co. v. Tepper, 2 So. 3d 209, 215 (Fla. 2009) (“Because the plain language of
However, that debate need not be resolved here for several reasons. First, the majority‘s artificial line of demarcation is not supported by logic or the case law on which it relies. What is readily apparent is that the majority treats this case differently than the majority treated the near identical circumstances of Hull based on supreme court precedent that predated the Hull case and the Conage opinion. And quite simply, nothing pertinent has changed since Hull, and whatever change was effected by Conage did not alter the precedential effect—or lack thereof—of prior cases that applied the recent controversy rule. Indeed, the majority cites cases predating both Hull and Conage for the proposition that the supreme court “has now instructed us” to “follow the ‘supremacy-of-text’ principle.” (Emphasis added) (quoting Ham, 308 So. 3d at 946). This raises the unanswered question of what the supreme court was doing in Ham or the several other pre-Conage supreme court cases decided based on the supremacy-of-text principle (merely suggesting its availability as an interpretive tool?). The fatal shortcomings of the majority‘s selection of one among many prior and subsequent supreme court supremacy-of-text opinions as a point certain at which the recent controversy rule can “no longer be aligned within current Florida jurisprudence” belie the gravamen of its “paradigm shift” rationale for the course correction. (Emphasis added.). So, even if the supremacy-of-text principle is subject to vertical stare decisis15—an open question for which I concede a case could possibly be made—the utilization of the interpretive method in Conage cannot be deemed a holding that obligates inferior courts to consider the supreme court to have overruled sub silentio its previous approval of the use of the recent controversy rule. See Stevens v. State, 226 So. 3d 787, 792 (Fla. 2017) (explaining that the supreme court does not overrule itself sub silentio); accord Arsali v. Chase Home Fin. LLC, 121 So. 3d 511, 516 (Fla. 2013); Roberts v. Brown, 43 So. 3d 673, 683 (Fla. 2010); Tompkins v. State, 994 So. 2d 1072, 1088 (Fla. 2008); Puryear v. State, 810 So. 2d 901, 905 (Fla. 2002).
Another reason we need not at this time resolve the debate about what binding effect
More importantly, there is no case law applying the recent controversy rule to impose on the version of the statute in effect at the relevant time a meaning its text cannot bear in violation of the constitutional prohibitions against ex post facto laws or the impairment of the obligations of a contract. See, e.g., id. at 473 (Atkinson, J., dissenting) (“Thus, Madison at Soho II‘s discussion of retroactivity and the constitutional provisions it could theoretically violate—e.g., the ex post facto clause, the impairment of contract clause—is dicta beсause there was never any danger in that case of violating such constitutional provisions because this court was applying the statute in accordance with the plain and ordinary meaning of the text of the preamendment version of the statute in effect at the time of the facts giving rise to the controversy.” (emphasis in original)). Despite the requirement to follow the decisions of the Florida Supreme Court and the generally accepted obligation to follow prior panel precedent, I am “not aware of any published opinion of the Florida Supreme Court that applies the recent controversy rule to retroactively impose a criminal liability that was not supported by the text of the statute at the time of the alleged offense.” Id. at 471–72 (Atkinson, J., dissenting). While the Florida Supreme Court has applied the recent controversy rule in a criminal case, it did not do so to contravene the meaning of the language of the statute in effect at the time of the alleged commission of the crime (which is what the Hull majority admittedly did), but rather to clarify legislative intent that was consistent with the unambiguous language of the original statute. See Leftwich, 148 So. 3d at 85–88; Lanier, 464 So. 2d at 1193. And none of this court‘s prior opinions construing the recent controversy rule “contain binding interpretations of constitutional provisions” that should have precluded application of the rule. Hull, 349 So. 3d at 473 (Atkinson, J., dissenting) (distinguishing this court‘s decision in Madison at Soho II Condo. Ass‘n v. Devo Acquisitions Enters., LLC, 198 So. 3d 1111 (Fla. 2d DCA 2016), on the grounds that its constitutional discussion was dicta and that the court “decided that the recently enacted pronouncement of legislative intent was consistent with the plain meaning of the text of the pre-amendment version of the statute“).
And even conceding for the sake of analysis that courts were bound by the legislative-intent-as-polestar interpretive method that the majority in this case describes as
Just as imposition of a judge‘s perception of what the law should say instead of what the text means would be a violation of the supremacy of the text principle as well as the separation of powers, adoption of a subsequent legislature‘s pronouncement of intent as to what a law should have said when it was enacted in the past instead of what it actually did say is likewise a violation of the supremacy of the text principle and separation of powers. Just as in the former, the judge in the latter scenario is applying something other than the ordinary meaning of the text enacted by the legislature that drafted and enacted the language of the pre-amendment statute.
Id. (Atkinson, J., dissenting) (emphasis in original) (citations omitted).
In this case, as in Hull, that subversion of the rule of law and violation of the separation of powers would adversely affect a litigant‘s constitutional right against ex post facto laws. See Griffin v. State, 980 So. 2d 1035, 1036 (Fla. 2008) (explaining the test of whether a law violates the ex post facto clause as “(1) whether the law is retrospective in effect; and (2) whether the law alters the definition of criminal conduct or increases the penalty by which a crime is punishable“). The amended statute and legislative expression of intent that the State would have us apply in this case changes the plain and ordinary meaning of the preamendment statute that was in effect at the time of Mr. Crose‘s alleged offense, such that the amendment alters what constitutes the crime of failure to report as a sexual offender to something different than what constituted the crime at the time of Mr. Crose‘s failure to act. See Hull, 349 So. 3d at 469 (Atkinson, J., dissenting) (“Under the pre-amendment
In summation, there are several compelling reasons to reject application of the recent controversy rule without addressing the questions of methodological stare decisis that the majority‘s rationale necessarily raises. I reject the majority‘s rationale because it is both chronologically challenged and because I cannot accept one of its necessary premises. Whatever precedential effect the recent controversy rule has or had—and I do not concede it ever
The arbitrariness of the majority‘s chronology has real-world consequences. Mr. Crose is being treated differently than Mr. Hull. The majority in his case did not consider the purported crossing of the Rubicon that it and the rest of the en banc majority now announces to have occurred at a time that was, unfortunately for Mr. Hull, too late for him. I would have granted Mr. Hull the relief afforded to Mr. Crose today when Mr. Hull advanced similar arguments in his case.16
Accordingly, in this case, I concur in result for the reasons herein and those on which I elaborated in my dissenting opinion in Hull. I would apply the ordinary meaning of the statute‘s text as it existed at the time of Mr. Crose‘s alleged offense because the recent controversy rule, deeply flawed as it is on its merits, is also not something this court is bound to apply in this case (if any). But I cannot agree with my colleagues in the majority that such a result in this case is supported by a purportedly binding precedent-setting “paradigm shift” in statutory interpretation, the existence of which the majority does not adequately support and, even if it could, was already in effect (but not applied) under identical circumstances in Hull.
Opinion subject to revision prior to official publication.
Notes
Besides which, when it says “[f]or purposes of sub-sub-subparagraph (I),” the second sentence is specifically pointing to a different sub-sub-subparagraph altogether, not the preceding sentence, and its nonexhaustive list of disjunctive potential penalties would be the antitheses of the particularizing use of the preceding sentence‘s definite article and meaning. The second sentence of (1)(h)1.a.(II) simply illustrates the kind of potential “sanctions” that could qualify for sexual offender registration; it leaves the work of who must register and when to the preceding sentence. That is how these two sentences are properly construed together.
See Marks, 430 U.S. at 191-92.The Ex Post Facto Clause is a limitation upon the powers of the Legislature, see Calder v. Bull, 3 Dall. 386, 1 L.Ed. 648 (1798), and does not of its own force apply to the Judicial branch of government. Frank v. Mangum, 237 U.S. 309, 344, 35 S.Ct. 582, 593, 59 L.Ed. 969 (1915). But the principle on which the Clause is based—the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties—is fundamental to our concept of constitutional liberty. See United States v. Harriss, 347 U.S. 612, 617, 74 S. Ct. 808, 811, 98 L. Ed. 989 (1954); Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S. Ct. 618, 619, 83 L.Ed. 888 (1939). As such, that right is protected against judicial action by the Due Process Clause of the Fifth Amendment.
Holly, 450 So. 2d 217, was a seminal case of statutory interpretation in Florida law for nearly forty years, having been cited, applied, and followed in over 600 published opinions before Conage‘s issuance. Conage did not simply clarify Holly (as Judge Atkinson‘s opinion seems to imply). Conage abrogated the most oft-cited features of Holly‘s holding. See Conage, 346 So. 3d at 598 (“[W]e address a threshold issue about Florida‘s law of statutory interpretation. The United States encourages us to use an approach that is often linked to a passage from our Court‘s decision in Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984) . . . . We believe that the Holly principle is misleading and outdated. . . . It would be a mistake to think that our law of statutory interpretation requires interpreters to make a threshold determination of whether a term has a ‘plain’ or ‘clear’ meaning in isolation . . . .“). Thus, our analysis of Conage‘s displacement of Holly is not an “artificial line of demarcation“; it is a reflection of the fact that arguments and issues do not come before our court in an ether, but at temporal points in the law‘s evolution. Holly‘s pronouncements that a statute‘s text only serves to illuminate a separate, subtextual intention and that, before relying on canons of interpretation, statutes must be examined for ambiguity have now been formally displaced. We have endeavored to resolve the issues that have been argued in this proceeding, as best as we are able, in the light of that displacement.