Thе WICCAN RELIGIOUS COOPERATIVE OF FLORIDA, INC., Appellant,
v.
Jim ZINGALE and The Florida Department of Revenue, Appellee.
District Court of Appeal of Florida, First District.
*135 Heather Morcroft, Orlando, for Appellant.
Charlie Crist, Attorney General; Eric J. Taylor, Senior Assistant Attorney General and Nicholas Bykowsky, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellees.
PER CURIAM.
Appellant, The Wiccan Religious Cooperative of Florida, Inc., brought various constitutional challenges against sales tax exemption statutes and alleged that it was improperly and unlawfully denied a renewal of its certificate of exemption from Florida sales and use tax. The trial court granted the appellee Florida Department of Revenue's motion for summary judgment, ruling that Wiccan had standing and that the challenged statutes were constitutional.[1] The trial court also ruled that Wiccan failed to exhaust its administrative remedies regarding obtaining a renewal of its certificate of exemption. Wiccan appeals only the trial court's ruling that section 212.06(9), Florida Statutes, is facially constitutional, arguing that the trial court erred because the statutory tax exemption clearly violates the United States Constitution Establishment Clause and Free Press Clause pursuant tо Texas Monthly, Inc. v. Bullock,
"[W]hen standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable." Flast v. Cohen,
In the instant case, Wiccan's constitutional challenge is that, based on the reasoning found in Texas Monthly, the Florida sales tax exemption benefits religion. The parties have stipulated that Wicca is a religion. Therefore, under Wiccan's argument that the tax exemption benefits religion, Wiccan, as a religious organization, benefits from the sales tax exemption. Accordingly, Wiccan fails to have the adverse interest necessary for standing and is not the proper party tо assert the instant constitutional challenge. See Valley Forge Christian Coll.,
The dissent opines that the court cannot consider Wiccan's lack of standing as an appealable issue because the Department failed to file a cross-appeal. We disagree. Generally, a cross-appeal must be filed to challenge an unfavorable portion of a final judgment substantially favorable to the appellee. See Smeaton v. Smeaton,
Therefore, we reverse, vacate the final judgment, and remand to the trial court with directions to enter final summary judgment in favor of the Department on the basis that Wiccan does not have standing.
REVERSED and REMANDED with instructions.
BROWNING and POLSTON, JJ., Concur; BENTON, J., Concurs in Part and Dissents in Part with Opinion.
BENTON, J., concurring in part and dissenting in part.
An exemption that is central to a statutory scheme purporting to authorize a discriminatory tax on the sale, use and distribution of publications, based explicitly on their content, does not conform to federal constitutional requirements. Section *137 212.06(9), Florida Statutes (2003), provides:
The taxes imposed by this chapter do not apply to the use, sale, or distribution of religious publications, bibles, hymn books, prayer books, vestments, altar paraphernalia, sacramental chalices, and like church service and ceremonial raiments and equipment.
§ 212.06(9), Fla. Stat. (2003). Finding no impediment to deciding the First Amendment questions appellant raises, I concur in reversing the judgment below to the extent it declared constitutional section 212.06(9)'s exemption of "religious publications, bibles, hymn books [and] prayer books."
I.
Here, as below, the contention is that section 212.06(9) runs afoul of both thе Free Press and the Establishment Clauses of the First Amendment, applicable to the states by virtue of the Fourteenth Amendment. In holding constitutionally infirm an analogous sales and use tax exemption in North Carolina, the Fourth Circuit explained why a statute like section 212.06(9), insofar as it exempts religious publications, bibles, hymn books and prayer books, is unconstitutional:
In Texas Monthly, Inc. v. Bullock,489 U.S. 1 ,109 S.Ct. 890 ,103 L.Ed.2d 1 (1989), the Supreme Court held that a Texas sаles and use tax exemption which applied to religious literature, but not to other types of literature, violated the establishment clause of the first amendment to the Constitution.[FN10] We agree with the appellants that this case presents a more untenable violation of the establishment clause because the Exemption specifically applies to "Holy Bibles," a rеligious text sacred only to members of Christian faiths.
FN10. Justices Brennan, Marshall and Stevens expressed their view that Texas' sales tax exemption for religious publications violated the establishment clause, that the exemption was not compelled by the free exercise clause, and that the Court need not determine whether the exemption contravened the free prеss clause as well. Justices Blackmun and O'Connor agreed that the exemption violated the establishment clause, but believed that it was unnecessary to decide whether the exemption was required by the free exercise clause. Justice White concurred in the judgment, opining that the exemption, because of its content-based discrimination, violated the free press clаuse. Justice Scalia, joined by Chief Justice Rehnquist and Justice Kennedy, dissented, expressing the opinion that the exemption violated neither the establishment clause nor the free press clause, and that the court's decision effectively overruled prior Supreme Court cases based on an accommodation of religion. The tax exemption at issue in Texas Monthly applied tо: "Periodicals that are published or distributed by a religious faith and that consist wholly of writings promulgating the teaching of the faith and books that consist wholly of writings sacred to a religious faith." Tex.Tax Code Ann. § 151.312 (1982).
The Exemption also violates the free press clause of the Constitution. In Arkansas Writers' Project, Inc. v. Ragland,481 U.S. 221 ,107 S.Ct. 1722 ,95 L.Ed.2d 209 (1987), the Supreme Court concluded that an Arkansas sales tax scheme, which exempted from taxation some but not аll classes of magazines,[FN11] violated the first amendment's guarantee of freedom of the press because of its content-based discrimination. *138 The Court noted that "even where, as here, there is no evidence of an improper censorial motive . . . selective taxation of the press either singling out the press as a whole or targeting individual members of the press posеs a particular danger of abuse by the State." Id. at 228,107 S.Ct. at 1727 . The Court concluded that "the Arkansas sales tax cannot be characterized as nondiscriminatory, because it is not evenly applied to all magazines," and that "the basis on which Arkansas differentiates between magazines is particularly repugnant to first amendment principles: a magazine's tax status depends entirely on its content." Id. at 229,107 S.Ct. at 1727 (emphasis in original). In the instant case, the Exemption differentiates between a Christian sacred text and other publications, both sacred and non-sacred and Christian and non-Christian. This distinction forces the State to discriminate on the basis of the contents of a book, text or other published work, which is intolerable under the first amendment. The Secretary argues that, despite its plain wording, she has attempted to apply the Exemption in a constitutional manner by interpreting it so that any sacred scriptures of any religion can qualify for the exemption upon proper review and consideration.[FN12] However, it is precisely this type of "official scrutiny of the content of publications as the basis for imposing a tax" that is so repugnant to the free press clause оf the Constitution. Id. at 230,107 S.Ct. at 1728 (citing Regan v. Time, Inc.,468 U.S. 641 , 648,104 S.Ct. 3262 , 3266,82 L.Ed.2d 487 (1984)).
FN11. The magazine exemption covered "religious, professional, trade and sports journals and/or publications printed and published within this State . . . when sold through regular subscriptions." Ark.Stat.Ann. § 84-1904(j) (1980) (since recodified as amended at Ark.Stat.Ann. § 26-52-401(14) (1987)).
FN12. It appears from the record in this case that the Secretary will not extend the Exemption to other sacred literature "without first reviewing said publiсation." See Joint Appendix at 16.
Thus, the Exemption is unconstitutional because it contravenes the establishment clause under the reasoning of Texas Monthly, and violates the free press clause under the rationale of Arkansas Writers' Project.
Finlator v. Powers,
Florida's exemption for "religious publications" is broader than North Carolina's exemption for Holy Bibles, but the relative breadth of the Florida exemption does not obviate Establishment Clause concerns. See Everson v. Bd. of Educ.,
II.
The majority opinion does not, indeed, suggest that section 212.06(9) passes constitutional muster. Instead, it avoids reaching the First Amendment questions on grounds that are logiсally and legally unavailable in the procedural posture of the case, and that are dubious in their own right. To the extent the majority opinion considers the question of standing, concludes that the appellant lacks standing because it is a religious organization, and orders disposition on remand accordingly, I respectfully dissent.
A.
The trial court ruled that The Wiccan Religious Cooperative of Florida, Inc. (Cooperative) "has standing to challenge the constitutionality of Section [ ] 212.06(9) . . ., Florida Statutes (2003)." Whether this ruling is correct I do not believe the majority opinion demonstrates otherwise or not, it is not properly before us for review. The Department of Revenue could have cross-appealed the trial court's ruling on standing, and could have argued on cross-appeal that the final judgment should have been reversed or vacated on the ground that the Cooperative lacked standing. But the Department did not do so. It has consistently argued, not for reversal of any part of the judgment below, but for affirmance of the judgment, including the trial court's declaration that the statute is constitutional. The Department never toоk a cross-appeal.
The decision that the Cooperative had standing was an integral part of the judgment, and a necessary predicate to the declaration of constitutionality that the Department asks us to uphold. In "the absence of a cross appeal, the appellee . . . may not seek affirmative relief from any part of the order" or judgment. Philip J. Padovano, Florida Appellate Practice, § 21.9, at 342 (2005 ed.) (emphasis supplied). See Premier Indus. v. Mead,
The majority opinion cites a single case for its perhaps unprecedented ruling that no notice of cross-appeal is necessary, in order for relief to be granted on cross-appeal. Citing Walker v. State,
this does not mean the period will be extended automatically or in every case. In most cases, the court will expect the time limits for filing to be complied with. However, when defendant will not suffer prejudice or be deprived of adequate notice, the court may, in its sound discretion, allow the state to file an untimely notice of сross appeal.
Id. The Walker court did not hold that a cross-appeal can be dispensed with altogether, only that an appeals court may allow late filing of a notice of cross-appeal for good cause. The only other case the majority opinion cites in this connection *140 affords, if possible, less support for blatantly disregarding the venerable requirement that a cross-appellant file a notice of cross-appeal. See Smeaton v. Smeaton,
B.
The Cooperative proved it paid taxes it would not have had to pay if the contents of books it purchased had been deemed to fall within the section 212.06(9) exemption. Although it also purchased copies of the Bible and the Koran on which no sales tax was paid, it was required to pay sales tax when it purchased copies of the Satanic Bible and the Witches Bible, just as any individual purchaser would have been required to do. See generally Dep't of Admin. v. Horne,
Part of the constitutional difficulty with section 212.06(9) is the uncertainty it creates about just which ideas a book must express, in order for its purchase to escape the tax. See generally State v. Ashcraft,
The Cooperative proved it suffered actual injury even if the tax authorities might eventually have disagreed with the sales clerk as to whether the books on which it paid tax were exempt. "Generally, where administrative remedies are available, it is improper to seek relief in the circuit court before those remedies are exhausted. Schl. Bd. of Flagler County v. Hauser,
While I would not reach the standing question, I do not share the majority opinion's views on the subject. The gist of the majority оpinion's argument is that, although presumably any individual, or perhaps a league of atheists (because they are *141 not religious), has standing to challenge this tax scheme as discriminatory, the Cooperative cannot maintain a challenge, because "Wicca is a religion." Raising more questions than it answers, the majority opinion states:
The parties have stipulated that Wicсa is a religion. Therefore, under Wiccan's argument that the tax exemption benefits religion, Wiccan, as a religious organization, benefits from the sales tax exemption. Accordingly, Wiccan fails to have the adverse interest necessary for standing and is not the proper party to assert the instant constitutional challenge.
Does this mean that a synagogue cannot quеstion the legality of using public money for a creche in the courthouse if a Star of David is installed? Would a Muslim congregation have standing, given Islam's view of Jesus as prophet? Whatever else may be said about the majority opinion's approach to standing, it discriminates against organizations because they are religious. This is not in keeping with our traditions.
III.
The standing question, which was not the subject of any cross-appeal, is not before us, and I dissеnt from the majority opinion's consideration of the question. The lower court's ruling on standing should not be disturbed. The trial court erred in declaring section 212.06(9) facially constitutional and upholding its constitutionality insofar as it exempts "religious publications, bibles, hymn books [and] prayer books," for the reasons set out in Part I. On that basis, I concur in reversing the trial court's judgment pro tanto.
NOTES
Notes
[1] The trial court ruled that Wiccan is not being discriminated against in comparison to other religions. Wiccan did not appeal that ruling.