MIKE HARIDOPLOS, PRESIDENT OF THE FLORIDA SENATE AND DEAN CANNON, SPEAKER OF THE FLORIDA HOUSE OF REPRESENTATIVES, v. ALACHUA COUNTY, FLORIDA, COLLIER COUNTY, FLORIDA, LEE COUNTY, FLORIDA, LEVY COUNTY, FLORIDA, NASSAU COUNTY, FLORIDA, PASCO COUNTY, FLORIDA, ST. LUCIE COUNTY, FLORIDA AND SARASOTA COUNTY, FLORIDA, POLITICAL SUBDIVISIONS OF THE STATE OF FLORIDA, ASSOCIATION OF COUNTIES, INC., FLORIDA LEAGUE OF CITIES, AND FLORIDA BOARDS ASSOCIATION, CORPORATIONS NOT FOR PROFIT UNDER FLORIDA LAW

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IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA MIKE HARIDOPOLOS, PRESIDENT OF THE FLORIDA SENATE AND DEAN CANNON, SPEAKER OF THE FLORIDA HOUSE OF REPRESENTATIVES, Petitioners, v. ALACHUA COUNTY, FLORIDA, COLLIER COUNTY, FLORIDA, LAKE COUNTY, FLORIDA, LEE COUNTY, FLORIDA, LEVY COUNTY, FLORIDA, NASSAU COUNTY, FLORIDA, PASCO COUNTY, FLORIDA, ST. LUCIE COUNTY, FLORIDA AND SARASOTA COUNTY, FLORIDA, POLITICAL SUBDIVISIONS OF THE STATE OF FLORIDA, ASSOCIATION OF COUNTIES, INC., FLORIDA LEAGUE OF CITIES, AND FLORIDA SCHOOL BOARDS ASSOCIATION, CORPORATIONS NOT FOR PROFIT UNDER FLORIDA LAW, Respondents. ___________________________/ Opinion filed May 9, 2011. Petition for Writ of Certiorari. NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 1D10-6433 Pamela Jo Bondi, Attorney General and Jonathan Glogau, Assistant Attorney General, for Petitioners. Harry F. Chiles, Gregory T. Stewart, Carly J. Schrader, Heath R. Stokley of Nabors, Giblin & Nickerson, for Respondents. PER CURIAM. Petitioners the Senate President and Speaker of the House petition this court to quash a trial court s denial of a motion to dismiss an action for declaratory relief, seeking to declare section 163.31801(5), Florida Statutes (2009), unconstitutional. In the motion to dismiss, Petitioners claimed absolute legislative immunity, arguing that because they acted within their official capacity when the legislature adopted the statutory provision, they were immune from suit. The trial court denied the motion based on its finding that legislative immunity did not apply as the complaint challenged the process by which the bill was passed, not the statute s contents. Specifically, the complaint alleged Petitioners failed to adopt the bill in accordance with several state constitutional provisions which required passage by a two-thirds majority in each chamber. We find the lower court departed from the essential requirements of the law when it denied the motion to dismiss. We grant the writ and quash the order. A suit challenging the constitutionality of a statute must be brought against the state agency or department charged with enforcing the statute at issue. See Walker v. President of the Senate, 658 So. 2d 1200 (Fla. 5th DCA 1995); see also American Civil Liberties Union v. The Fla. Bar, 999 F. 2d 1486 (11th Cir. 1993). In other words, 2 legislators are not proper parties to actions seeking a declaration of rights under a particular statute. See Walker, 658 So. 2d at 1200. In fact, state officials are absolutely immune from civil suits for any actions falling within the sphere of legislative activity. See City of Pompano Beach v. Swerdlow Lightspeed Mgmt. Co., 942 So. 2d 455, 45657 (Fla. 4th DCA 2006); see also Penthouse, Inc. v. Saba, 399 So. 2d 456, 458 (Fla. 2d DCA 1981) ( If an exercise of legislative power or judicial power is involved, then immunity is absolute. ). Legislative immunity is necessary to ensure legislators are not subject to the consequences of litigation at the expense of their legislative duties. See Junior v. Reed, 693 So. 2d 586, 589 (Fla. 1st DCA 1997) ( [P]ublic officers require this protection to shield them from undue interference with their duties and from potentially disabling threats of liability. ) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982)). In the instant case, Respondents filed a complaint against the Senate President and Speaker of the House (Petitioners) requesting the lower court declare section 163.31801(5) unconstitutional. Section 163.31801(5) provides that: In any action challenging an impact fee, the government has the burden of proving by a preponderance of the evidence that the imposition or amount of the fee meets the requirements of state legal precedent or this section. The court may not use a deferential standard. The four-count complaint alleged the statute violated the following state constitutional provisions: Article V, section 2 (providing that legislative changes to a 3 court rule of practice and procedure must be adopted by a two-thirds vote in each chamber); Article II, section 3 (providing for the separation of powers); Article VII, section 18(a) (providing that [n]o county or municipality shall be bound by any general law requiring such county or municipality to spend funds or take an action requiring the expenditure of funds unless the legislature has, among other things, adopted the bill by a two-thirds vote in each chamber); and Article VII, section 18(b) (providing that the legislature may not enact, amend, or repeal any general law if the anticipated effect of doing so would be to reduce the authority that municipalities and counties have to raise revenues in the aggregate[,] unless such law is adopted by a two-thirds majority in each chamber). Despite Respondents attempts to distinguish this case as a challenge to the process by which the statute was adopted, rather than a challenge to the constitutionality of the statute, all four counts of the complaint are, in actuality, challenges to the statute s contents. The most obvious challenge occurs where Respondents argue that, by eliminating courts ability to use a deferential standard in their consideration of disputes over impact fees, the statute violates Article II, section 3, or the separation of powers. This is a direct attack on the statute s contents. With respect to the other counts alleged, whether or not the two-thirds vote requirement is triggered by the underlying statute is a question that goes to the statute s substance. In other words, Respondents assume that, because the Bill Analysis and 4 Fiscal Impact Statements prepared by Senate and House staff concluded that the statute triggered the two-thirds requirement, the legislature was required to adopt the bill by a two-thirds majority in each chamber. However, the bill analyses are not dispositive of this issue. To determine whether the statute should have been passed in accordance with the two-thirds requirement, a court would need to consider whether such requirement was even implicated by the statute s contents. Indeed, it is important to note that the bill analyses addressed only Article VII, section 18(b). Thus, a lower court would have to consider whether the statute s contents required compliance with the remaining constitutional provisions cited in the complaint (i.e., Article V, section 2 and Article VII, section 18(a)). Consequently, Respondents attempts to distinguish this case on the basis that they are challenging how the statute was adopted, as opposed to its substance, are unpersuasive. We find that Petitioners were acting within their capacity as legislators when they adopted the challenged statute and, therefore, were entitled to legislative immunity in the underlying action. Because involving Petitioners in further litigation will negate this immunity, thereby causing irreparable harm, and because the trial court departed from the essential requirements of law in finding immunity inapplicable, we GRANT the petition and QUASH the order denying Petitioners motion to dismiss on legislative immunity grounds. LEWIS, HAWKES, and MARSTILLER, JJ., CONCUR. 5

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