Opinion
No. 51276.
June 30, 1977. Rehearing Denied July 26, 1977.
Appeal from the Circuit Court, Leon County, Donald O. Hartwell, J.
Andrew A. Graham of the Law Offices of Charles M. Holcomb, Cocoa, and Tobias Simon and Elizabeth Du Fresne, Miami, for appellants.
Robert L. Shevin, Atty. Gen., James D. Whisenand, Deputy Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., and Eleanor A. Mitchell, Asst. Gen. Counsel, Tallahassee, for appellees.
We have for review by direct appeal an order of the Circuit Court, in and for Leon County, granting appellees' motion to dismiss and deny appellants' petition for temporary injunctive relief, in which the court construes provisions of the Constitution of Florida, thereby vesting jurisdiction in this Court pursuant to Article V, Section 3(b)(1), Florida Constitution.
Sullivan, Alford and Alvord, all convicted of capital felonies and sentenced to death (which convictions and sentences have been affirmed on appeal), filed a complaint for declaratory and injunctive relief and alleged that the Governor, along with three concurring members of the Cabinet, has the authority under Article IV, Section 8, Florida Constitution, to commute the death sentences by granting clemency; that a hearing is required; that minimal due process, including a fair and impartial tribunal, the right to be heard in person and by counsel, and written standards or guidelines setting forth factors to be considered in granting clemency, is required; and that the scheduled hearings deny due process. The trial court granted appellees' motion to dismiss the complaint on the basis that it lacked jurisdiction over appellees pursuant to Article II, Section 3, and Article IV, Section 8, Florida Constitution, and lacked jurisdiction of the cause, pursuant to the same constitutional provisions, and that the complaint failed to state a cause of action.
The Parole and Probation Commission conducted investigations into each of appellants' cases and made a negative recommendation relative to commutation.
Preliminarily, we consider the decision of the trial judge expressly finding that the court lacks jurisdiction over the parties and the subject matter. Article V, Section 5, of the Florida Constitution vests the circuit courts with plenary power and the jurisdiction to construe all sections of the Constitution. Cf. Curtis et al. v. Albritton, 101 Fla. 853, 132 So. 677 (1931). It is a judicial responsibility to interpret and construe provisions of the Constitution when there are ambiguities or conflicts. The court may determine constitutional intent to assist in the decision of whether a given responsibility lies exclusively with one branch, whether that branch has been granted restricted or unrestricted power to perform such duties and whether the constitutional provision fixing the responsibility is self-executing. Moreover, the Court may determine whether any constitutional grant of power is being exercised according to the specific grant and in a manner that does not violate any other provision of the Constitution. The trial judge was in error when he held that the court was without jurisdiction, but because, as explained below, the clemency power is exclusively in the executive branch, he was correct in determining that the complaint fails to state a cause of action.
The clemency power, which is the power to suspend collection of fines and forfeitures, to grant reprieves, to grant full or conditional pardons, restore civil rights, commute punishments, and to remit fines and forfeitures for offenses, reposes exclusively in the Chief Executive.
Historically, the pardoning power was a part of the royal prerogative in England. Defining a pardon, Chief Justice Marshall, in United States v. Wilson, 7 Pet. 150, 8 L.Ed. 640, stated:
"A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official, act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the court."
This power flows from the Constitution and not from any legislative enactment, Advisory Opinion of the Governor, In Re: Administrative Procedure Act: Executive Clemency, 334 So.2d 561 (Fla. 1976). The United States Supreme Court, in Schick v. Reed, 419 U.S. 256, 95 S.Ct. 379, 42 L.Ed.2d 430 (1974), concluded:
"A fair reading of the history of the English pardoning power, from which our Art. II, § 2, cl 1, derives, of the language of that clause itself, and of the unbroken practice since 1790 compels the conclusion that the power flows from the Constitution alone, not from any legislative enactments, and that it cannot be modified, abridged, or diminished by the Congress. Additionally, considerations of public policy and humanitarian impulses support an interpretation of that power so as to permit the attachment of any condition which does not otherwise offend the Constitution. The plain purpose of the broad power conferred by § 2, cl 1, was to allow plenary authority in the President to `forgive' the convicted person in part or entirely, to reduce a penalty in terms of a specified number of years, or to alter it with conditions which are in themselves constitutionally unobjectionable. If we were to accept petitioner's contentions, a commutation of his death sentence to 25 or 30 years would be subject to the same challenge as is now made, i.e., that parole must be available to petitioner because it is to others. That such an interpretation of § 2, cl 1, would in all probability tend to inhibit the exercise of the pardoning power and reduce the frequency of commutations is hardly open to doubt. We therefore hold that the pardoning power is an enumerated power of the Constitution and its limitations, if any, must be found in the Constitution itself. It would be a curious logic to allow a convicted person who petitions for mercy to retain the full benefit of a lesser punishment with conditions, yet escape burdens readily assumed in accepting the commutations which he sought." (Emphasis supplied.)
We quote with approval the following excerpt from American Jurisprudence:
"An executive may grant a pardon for good reasons or bad, or for any reason at all, and his act is final and irrevocable. Even for the grossest abuse of this discretionary power the law affords no remedy; the courts have no concern with the reasons which actuated the executive. The constitution clothes him with the power to grant pardons, and this power is beyond the control, or even the legitimate criticism, of the judiciary. Whatever may have been the reasons for granting the pardon, the courts cannot decline to give it effect, if it is valid upon its face, and no court has the power to review grounds or motives for the action of the executive in granting a pardon, for that would be the exercise of the pardoning power in part, and any attempt of the courts to interfere with the governor in the exercise of the pardoning power would be manifest usurpation of authority, no matter how flagrant the breach of duty upon the part of the executive, unless granted the power by competent authority or unless fraud has entered into the case."
Article IV, Section 8, Florida Constitution, provides:
"(a) Except in cases of treason and in cases where impeachment results in conviction, the governor may, by executive order filed with the secretary of state, suspend collection of fines and forfeitures, grant reprieves not exceeding sixty days and, with the approval of three members of the cabinet, grant full or conditional pardons, restore civil rights, commute punishment, and remit fines and forfeitures for offenses.
"(b) In cases of treason the governor may grant reprieves until adjournment of the regular session of the legislature convening next after the conviction, at which session the legislature may grant a pardon or further reprieve; otherwise the sentence shall be executed."
By this self-executing constitutional provision, the people of this state chose to vest sole, unrestricted, unlimited discretion exclusively in the executive in exercising this act of grace. This Court, in In Re Advisory Opinion of the Governor Civil Rights, 306 So.2d 520 (Fla. 1975), explained:
"We find that the well established principle of expressio unius est exclusio alterius applies sub judice. The people of this state through adoption of Article IV, Section 8, Florida Constitution expressed their will that the power of pardon and restoration of civil rights vest in the executive. As aforestated, this Court has previously determined that this method is exclusive. As this Court expressly declared in Weinberger v. Board of Public Instruction, 93 Fla. 470, 112 So. 253, 256 (Fla. 1927):
`The principle is well established that, where the Constitution expressly provides the manner of doing a thing, it impliedly forbids its being done in a substantially different manner. Even though the Constitution does not in terms prohibit the doing of a thing in another manner, the fact that it has prescribed the manner in which the thing shall be done is itself a prohibition against a different manner of doing it. Holland v. State, 15 Fla. 455, text 523. See, also, Grantham v. Board of Public Inst., 77 Fla. 540, 82 So. 52. Therefore, when the Constitution prescribes the manner of doing an act, the manner prescribed is exclusive, and it is beyond the power of the Legislature to enact a statute that would defeat the purpose of the constitutional provision. [Cases cited.]'"
Article II, Section 3, Florida Constitution, divides government into three separate and distinct branches of government and provides that "[n]o person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein."
Holding that an attempt on the part of the Legislature to exercise any part of the pardoning power would be in conflict with the Constitution, this Court, in Singleton v. State, 38 Fla. 297, 21 So. 21 (1896), opined:
". . . we are of the opinion that the pardoning power, after conviction, conferred by this section upon the board of pardons designated, is exclusive, and that the legislature cannot exercise such power. The constitution of Missouri vested the pardoning power in the governor, and it was decided in State v. Sloss, 25 Mo. 291, that such power belonged exclusively to the executive department, and could not be exercised by the legislature. The constitution of the United States confers upon the president the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment, and Judge Story says (2 Const. § 1504) that `no law can abridge the constitutional powers of the executive department, or interrupt its right to interpose by pardon in such cases.' It was held, in Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366, that the pardoning power conferred on the president was not subject to legislative control. . . ."
Cf. In Re Advisory Opinion of Governor Civil Rights, supra.
Responding in the negative to the question of whether the requirements of Chapter 120, Florida Statutes, the Administrative Procedure Act, apply to the constitutional power of the Governor to extend executive clemency, this Court explicated:
"This Court has always viewed the pardon powers expressed in the Constitution as being peculiarly within the domain of the executive branch of government. Merely because the 1968 Constitution has given the Governor the initiative to institute certain acts of clemency and expanded the number of cabinet officers eligible to participate with him in the exercise of these powers, we see no reason to depart from our previous view that the Legislature may not intrude into this area of constitutional authorization. For that reason, and without regard to the absence of an express exemption in the Administrative Procedure Act for members of the cabinet, we believe that the acts of approval by members of the cabinet are also beyond the scope of the Act." Advisory Opinion of the Governor, In re: Administrative Procedure Act, supra.
This prohibition against legislative encroachment upon the executive's clemency power is equally applicable to the judiciary. Article II, Section 3, Florida Constitution. Declaring a legislative enactment, Chapter 16810, Acts 1935, unconstitutional and void as being in conflict with and in derogation of the constitutionally established execution power of clemency, in Ex parte White, 131 Fla. 83, 178 So. 876 (1938), this Court, in analyzing the separation of powers and exclusivity of this executive function, quoted the following excerpt from Cooley on Constitutional Limitations, Vol. 1 (8th Ed.), pp. 213-221.
"It may be proper to say here, that the executive, in the proper discharge of his duties under the constitution, is as independent of the courts as he is of the legislature." (Emphasis supplied.)
In the exercise of the exclusive power to grant or withhold clemency, the executive has adopted procedures that accord with the specific constitutional grant in Article IV, Section 8, Florida Constitution, and do not impose constitutionally objectionable conditions.
For the foregoing reasons, this Court will not intrude on the proper execution of the executive power, and the complaint that prays for such relief is without merit.
Accordingly, the order of the trial court, insofar as it holds that it is without jurisdiction, is reversed. We affirm that portion of the order finding that the complaint fails to state a cause of action and ordering that the complaint be dismissed.
It is so ordered.
OVERTON, C.J., and ADKINS, BOYD, SUNDBERG and HATCHETT, JJ., concur.
ENGLAND, J., concurs in result only with an opinion.
1. Statement of Policy 2. Office of Executive Clemency 3. Paroles 4. Persons Incarcerated 5. Clemency 6. Automatic Restoration of Civil Rights 775.13 7. Commutation of Death Sentences 8. Application Forms 9. Necessary Documents to be Filed with Application 10. Time for Filing Application 11. Procedure for Consideration of Applications 12. Reapplication 13. Failure to Meet Requirements of Rules 14. Waiver of the Rules 15. Referral to the Florida Parole and Probation Commission 16. Agenda 17. Governor and Cabinet Cases 18. Presentation of Cases 19. Continuance of Cases 20. Withdrawal of Cases 21. Effective Dates
APPENDIX A EXECUTIVE CLEMENCY Executive Clemency is a power vested in the Governor by the Florida Constitution of 1968. Article IV, Section 8(a) of the Constitution provides: Except in cases of treason and in cases where impeachment results in conviction, the governor may, by executive order filed with the secretary of state, suspend collection of fines and forfeitures, grant reprieves not exceeding sixty days and, with the approval of three members of the cabinet, grant full or conditional pardons, restore civil rights, commute punishment, and remit fines and forfeitures for offenses. Clemency is an act of grace proceeding from the power entrusted with the execution of the laws and exempts the individual upon whom it is bestowed from all or any part of the punishment the law inflicts for a crime committed. In order to assist in the orderly and expeditious exercise of this executive power, the Office of Executive Clemency is created to process those matters of Executive Clemency requiring approval of three members of the Cabinet. These rules are created by mutual consent of the Governor and Cabinet and nothing contained herein can or is intended to limit the authority given to the Governor or the Cabinet in the exercise of this constitutional prerogative. The Governor with the approval of three members of the Cabinet shall appoint a Coordinator who shall appoint all assistants. The Coordinator and assistants shall comprise the Office of Executive Clemency. The Coordinator shall keep a proper record of all proceedings, and shall be the custodian of all records. The Governor and Cabinet have no jurisdiction on questions of parole and probation and such matters will not be entertained by the Governor and Cabinet. Persons incarcerated, other than those sentenced to death, will not be considered for any form of Executive Clemency, unless a waiver is granted in accordance with Rule 14 or Clemency is recommended by the Secretary of the Department of Offender Rehabilitation or by the Chairman of the Parole and Probation Commission. See Rule 7 for commutation of death sentences. In the discretion of the Governor, if a case merits consideration of Executive Clemency for any reason, the Governor with the approval of three Cabinet members may bestow the following acts of grace: A. FULL PARDON A Full Pardon unconditionally releases from punishment, forgives guilt and entitles an applicant to all of the rights of citizenship enjoyed by him before his conviction. It freely and unconditionally absolves the offender from all legal consequences of the conviction of an offense under Florida Law. B. CONDITIONAL PARDON A Conditional Pardon releases from punishment, only so long as the applicant fulfills certain conditions, precedent or subsequent, which are specified by the Governor with the approval of three Cabinet members. A violation or breach of the conditions may remove the conditional pardon and return the recipient to his status prior to receiving same. C. COMMUTATION OF SENTENCE Commutation of Sentence changes the applicant's penalty to one less severe, but does not restore civil rights. See Rule 7 on commutation of death sentences. D. REMISSION OF FINES AND FORFEITURES Remission of Fines and Forfeitures suspends or removes fines or forfeitures. E. RESTORATION OF CIVIL RIGHTS Restoration of Civil Rights restores to the applicant all or some of the rights of citizenship enjoyed before felony conviction(s) in the State of Florida or restores all or some civil rights in this State for persons convicted under the laws of another state or government of the United States. (1) RESTORATION OF CIVIL RIGHTS is granted to an applicant convicted in a Florida court of more than one felony. Automatic restoration of civil rights is granted to an applicant convicted of one felony who otherwise qualifies under Rule 6. (2) RESTORATION OF CIVIL RIGHTS IN THE STATE OF FLORIDA is granted to an applicant convicted of a felony in another jurisdiction, including another state, federal or military court. F. RESTORATION OF RESIDENCE RIGHTS Restoration of Residence Rights restores to the applicant, who is not a citizen of the United States and has no civil rights, any and all rights enjoyed by him as a resident of Florida which were lost as a result of a felony conviction under the laws of the State of Florida, any other state, or the federal government. The applicant must have been a bona fide resident of the State of Florida for at least one year next prior to making application for the restoration of residence rights. G. SPECIFIC AUTHORITY TO OWN, POSSESS OR USE FIREARMS Specific Authority to Own, Possess or Use Firearms restores to the applicant the right to own, possess or use firearms after the applicant's civil rights or residence rights have been restored. Pursuant to the Federal Gun Control Act of 1968, a person who has been convicted of a felony and has been granted restoration of civil rights with authority to own, possess or use a firearm, must apply to the Regional Director, Bureau of Alcohol, Tobacco and Firearms, Post Office Box 2994, Atlanta, Georgia, 30301, in order to meet federal requirements. A. When a person receives final release from the Florida Parole and Probation Commission, Department of Offender Rehabilitation or county jail, his civil rights shall be automatically reinstated, except for his right to own, possess or use a firearm. B. Any person released from the Florida Parole and Probation Commission, the Department of Offender Rehabilitation, county jail or released from probation by the court prior to the effective date, November 1, 1975, of this rule may upon application have his civil rights automatically reinstated, except for his right to own, possess or use a firearm. C. This rule shall not apply to a person who has an outstanding detainer based upon a state, an out-of-state or federal felony charge or conviction or who is incarcerated based on a felony conviction, or a person who has a previous or subsequent felony conviction. In such cases a person may seek restoration of civil rights by applying to the Office of Executive Clemency. D. The authority to own, possess or use a firearm may be specifically granted by the Governor with approval of three members of the Cabinet. Therefore, in cases where specific authority to own, possess or use a firearm is sought, a person shall make application to have his request considered by the Governor and Cabinet. E. Notwithstanding automatic restoration of civil rights, a person who has received final release from the Department of Offender Rehabilitation by expiration of sentence or who has been convicted of a felony and has been released from a county jail in Florida is not exempt from the registration requirements of Florida Statute unless the Governor with approval of three members of the Cabinet has restored the person's civil rights with specific authority to own, possess or use a firearm. All Rules of Executive Clemency are inapplicable to cases of inmates sentenced to death, except Rules 1, 2, 3 and 17. A. In capital punishment cases, the Clerk of the Court shall prepare and send, pursuant to Section 922.09, F.S., a certified copy of the conviction and sentence to the Governor within thirty (30) days after the Circuit Court's receipt of the Florida Supreme Court's mandate or the dissolution of any stay of the mandate. The Governor or any member of the Cabinet, after reviewing a certified copy of the conviction and sentence, may request the Florida Parole and Probation Commission to make an appropriate investigation, inquiring into any factors relevant to commutation. The Commission shall designate a person to receive the written or oral statements of testimony from any interested persons who wish to make their views on the inmate's commutation known to the Governor and Cabinet and from the inmate who may have legal counsel present. Statements or testimony shall be taken in a non-adversary proceeding, without interrogation of witnesses, except for the limited purposes of identifying witnesses and clarifying statements. A report of the Commission's investigation, including a transcript of the statements or testimony, shall be provided to the Governor and members of the Cabinet within sixty (60) days after request for investigation. Along with the report, the Governor or any member of the Cabinet may request a recommendation from the Commission. Any report submitted by the Secretary of the Department of Offender Rehabilitation shall be included in the Commission's report. B. Due to the nature of the information presented to the Governor and Cabinet by the Florida Parole and Probation Commission during review of capital cases for purpose of consideration of Executive Clemency, the confidentiality of certain of the material must be maintained. The report of the Commission, similar to a pre-sentence investigation report, will contain a portion which is public and a portion which shall remain confidential. The portion of the report designated confidential by the Commission shall include those documents as required to be so by law, by agency or court rule, or by the source. The confidential portion shall not be made public and shall be available only to the following persons under the following stated conditions: (a) To the Governor and Cabinet members to assist in determining the Clemency request; and (b) To the attorneys for each side absent a compelling interest to the contrary, as determined by the Governor. Any information so disclosed to one party shall be disclosed to the opposing party. C. After the Commission's report is received by the Governor and Cabinet, the Coordinator shall place the name of the inmate on the agenda for the next Executive Clemency meeting or a specially called meeting of the Governor and members of the Cabinet, but not sooner than thirty (30) days after receiving the Commission's report including the transcript of statements or testimony. The Coordinator shall also give immediate notice of the time, date and place of the meeting to the appropriate State Attorney and the Attorney for the inmate, advising each of the availability of the Commission's report including the transcript of the statements or testimony. Each Attorney may file with the Coordinator, for distribution to the Governor and Cabinet members, any written exceptions, briefs or memoranda on the case up to ten (10) days prior to the date of the meeting. D. At the meeting to consider Executive Clemency, the Attorneys may present oral arguments not exceeding thirty (30) minutes for each side. E. After the meeting, no arguments for or against commutation shall be presented to the Governor and Cabinet members individually. Any person with relevant information or comments must submit the same in writing to the Office of Executive Clemency for reproduction and distribution to the Governor and Cabinet members. The transcript of oral arguments will be distributed to the Governor and Cabinet members. F. If commutation is ordered by the Governor with the approval of three (3) or more Cabinet members, the Coordinator shall prepare the order for their signatures, file the order with the Secretary of State, and notify the Attorneys for each side. When the order of Executive Clemency is filed or the decision not to grant Executive Clemency is made, the positions of the Governor and Cabinet members shall be made public. G. If commutation is not granted, the Governor will request the Attorney General to review the record, determine its legal sufficiency for the issuance of the warrant, and notify the Governor of any pending judicial proceedings involving the inmate. The Coordinator shall prepare the warrant for the Governor's signature, secure the seal and signature of the Secretary of State, mail the warrant to the Superintendent of Florida State Prison, and immediately notify the Attorneys for each side of the issuance of the warrant. H. At the next Executive Clemency meeting, the Coordinator shall report on the status of any capital cases still pending before the Governor and Cabinet and on any subsequent disposition of capital cases heard at the preceding Clemency meeting. Forms to be used in making application for Clemency will be furnished by the Coordinator upon request. All correspondence regarding application should be addressed to Coordinator, Office of Executive Clemency, Room 442, Larson Building, Tallahassee, Florida 32304. A. The following necessary documents shall be filed with the application: (1) A certified copy of the charging instrument (indictment, information or affidavit) and certified copy of judgment and sentence of each felony conviction within the State, out-of-state or federal. The Clerk of the Court, is requested to furnish such documents without expense upon request. (2) An affidavit showing that a copy of the application was furnished to the Prosecuting Attorney of the court in which the applicant was convicted and to the presiding Judge of said Court. B. All supporting information or character references that the applicant desires to present with his application must be filed with the Coordinator at least thirty (30) days before the Clemency meeting. C. The Governor may require that an applicant file a stenographic report of the testimony given at his trial, if such a report is available. It will not be necessary for an applicant to file such stenographic report unless specifically notified to do so by the Coordinator. D. It is the responsibility of the applicant to keep the Office of Executive Clemency advised of any change of address. A. Application for full pardon, conditional pardon, restoration of civil rights with specific authority to own, possess or use a firearm, residence rights of non-U.S. citizens, commutation of sentence, remission of fines or forfeitures with above enumerated attachments must be filed with the Coordinator on a standard form at least sixty (60) days before the date set for the Clemency meeting at which the application is to be heard. B. Application for restoration of civil rights in the State of Florida which were lost by reason of a conviction under the laws of another state or government of the United States and which would have constituted a felony under Florida law, with above enumerated attachments, must be filed with the Coordinator on standard form at least 90 days before the date set for the Clemency meeting at which the application is to be heard. The applicant must have been a bona fide resident of the State of Florida for at least one year next prior to making application for restoration of civil rights. The Coordinator shall place upon the agenda for consideration by the Governor and Cabinet at the next Clemency meeting all applications: A. That are referred to the Coordinator by written notification of the Governor. B. That are timely filed, that are complete and include all necessary supporting papers required by these rules, and reflect that the applicant meets the following criteria: (1) The applicant has been discharged from probation, mandatory conditional release, or parole with no outstanding detainers. (2) The applicant has paid the pecuniary penalty or has been released from incarceration by the expiration of sentence with no outstanding detainers. C. That the Florida Parole and Probation Commission has made a thorough investigation and study of the case, and made a recommendation to the Governor and Cabinet, fully advising of the facts upon which such recommendation is based, concerning clemency either (1) on its own motion; or (2) when the Secretary of the Department of Offender Rehabilitation has presented to the Florida Parole and Probation Commission the names of persons released from prison at the expiration of their sentences and such other cases of merit that have come to his attention of inmates who have no means to prepare their cases and applications for presentation to the Governor; or (3) when it has investigated any inmate who is sentenced to life imprisonment, who has actually served ten years, has sustained no charge of misconduct, has a good institutional record, and who has been recommended by the Secretary of the Department of Offender Rehabilitation for a commutation of sentence. Any person who has been granted or denied any form of Executive Clemency may not apply for further Executive Clemency for at least one year, unless a waiver is granted under Rule 14. If any application does not meet the requirements of these rules, it may be returned to the applicant. When an applicant cannot meet the requirements of the rules and wishes to have an application for Clemency considered, the applicant may petition the Governor and Cabinet by letter for a waiver of the rules. A waiver may only be granted by the Governor with the approval of three members of the Cabinet. Upon receipt by the Coordinator of written notification from the Governor and three members of the Cabinet, the Coordinator shall place on the agenda the application for clemency. Every application which meets the requirements for consideration, on its face, may be referred to the Florida Parole and Probation Commission for investigation, report and recommendation. Those whose applications have been submitted are required to comply with reasonable requests of the Florida Parole and Probation Commission in order to facilitate and expedite investigation of their case. The Coordinator shall prepare an agenda which shall include all cases to be presented at the Clemency meeting for consideration. The agenda shall be distributed to the Governor and Cabinet seven days before the meeting. Nothing contained herein shall prevent the Governor or any member of the Cabinet from proposing a case for Executive Clemency. Any such case may be acted upon by the Governor with approval of three members of the Cabinet and nothing contained herein shall limit the exercise of that power. The Governor and Cabinet will meet in the Capitol on the first Wednesday after the second Monday in the months of March, June, September and December of each year, or at such other times as may be designated by the Governor. An applicant need not be present at the meeting. There will be no special sessions except to consider an emergency upon the call of the Governor. Cases proposed in accordance with Rule 17 may be acted upon by circulation of a proposed order and without necessity of a meeting. A. In the presentation of cases being heard before the Governor, not more than 20 minutes shall be allotted the applicant and not more than 20 minutes shall be allowed the protestants. B. All oral arguments to be presented either for or against an application shall be presented at the Clemency meeting and not to the Governor and Cabinet members individually except as provided by Rule 14. C. Subsequent to the meeting, the Coordinator shall prepare orders granting clemency as directed, certify after being signed, mail, and file the original copies with the Secretary of State. A letter will be directed to each party concerned, officially stating disposition of his application. A Seal is not used by the Office of Executive Clemency. Continuance of cases filed will be allowed on application of interested parties if based on sufficient grounds. Cases held under advisement for further information desired by the Governor with approval of three Cabinet members will be marked "continued" and noted on each subsequent agenda until disposed of, taking regular position with other cases on the agenda. Withdrawal of cases filed will be allowed on application of interested parties if based on good grounds. Cases that are "withdrawn" from the agenda will not be considered again until the application is refiled. Failure to comply with these rules will be sufficient cause to refuse, without notice, to place an application on the Agenda. History. — Adopted September 10, 1975, Rule 6 (formerly Rule 9) effective November 1, 1975; Rule 7 adopted December 8, 1976; Rule 6 amended December 8, 1976, effective February 15, 1977; revised February 15, 1977.I concur in the majority's preliminary conclusion that the trial court had jurisdiction to entertain petitioners' lawsuit, and its ultimate conclusion that petitioners should not prevail. I do not agree with the majority's conclusion that the complaint fails to state a cognizable cause of action, however. Petitioners have convinced me that the clemency process recently used by the Governor and cabinet to determine if these petitioners should live or die is reviewable for minimal due process standards; they fail only in persuading me that the process actually applied has run afoul of any constitutional minima so as to entitle them to the relief they have requested.
To make my position as clear as I can at the outset, I do not hold the view that the Governor and three concurring cabinet members must exercise their discretion to grant or deny clemency in any specified or particular fashion, formal or informal. I do believe, however, that a basis for our judicial review is provided in this case because (i) the seven heads of Florida's executive branch of government have, of their volition, created a formal administrative agency for death sentence review, (ii) the procedures they have established for this agency purport to provide minimum due process beyond what the Constitution itself prescribes, and (iii) having willingly clothed this aspect of their clemency power in non-constitutional garbs the Governor and cabinet cannot now declare themselves invisible to the judiciary so as to prohibit this Court from testing their procedures for fundamental fairness.
This case does not involve the exercise of a constitutional prerogative in the manner prescribed in the Constitution, as was the situation which concerned the Court in Weinberger v. Board of Public Instruction, 93 Fla. 470, 112 So. 253 (1927), quoted in the majority's opinion.
To understand my perceptions of this case it is necessary to identify a critical facet of petitioners' complaint which the majority opinion does not describe — the clemency process established by the Governor and cabinet for death sentence review. A copy of the procedure to which these officials willingly pledged themselves appears as an appendix to this opinion, with the critical provisions appearing as Rule 7. The majority's omission of any description of this process leaves the erroneous impression that petitioners are simply dissatisfied with their failure to receive clemency in a particular way. I do not understand that to be their complaint. I view their dissatisfaction as emanating from a special process which must, to be understood, be compared with the traditional processes for clemency.
Where a single executive has been assigned clemency powers, the usual process (which has generally avoided judicial scrutiny) is perhaps best exemplified by President Ford's pardon of former president Richard Nixon or President Carter's pardon of convicted Watergate burglar G. Gordon Liddy. Acting under the authority of Article II, Section 2 of the United States Constitution, the President in each case simply sat down, penned a pardon, and publicly announced that he had done so. No hearings were held, no one was required to be consulted or to concur, and no reasons were required to be given. The discretion to initiate and to grant these pardons was conferred by the Constitution, and it was exercised when, for whom and however the executive chose. By judicial precedent this "process" has remained unreviewable because any review at all would necessarily be a review of the discretionary power to initiate or to grant clemency.
"The President . . . shall have power to grant reprieves and pardons for offences against the United States. . . ."
Both presidents did, of course, explain why they had acted.
Not all constitutional powers of the President are similarly immune from procedural requirements imposed by statute, or from judicial review. As to the former, see the Federal Register Act of 1935, 1 C.F.R. § 19.2(a)(1974). As to the latter, see United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). For a more complete treatment of the subject, see Levinson, Presidential Self-Regulation Through Rulemaking: Comparative Comments on Structuring the Chief Executive's Constitutional Powers, 9 Vand. J. Transnat'l L. 695 (1976).
Where the clemency power has been assigned to more than one member of the executive branch, as in Florida, the process of initiating or evaluating clemency applications can vary. For example, a recent exercise of clemency powers by the Governor and members of the Florida cabinet involved both joint and individual initiatives. In considering prospective pardons for convicted murderers Freddie Lee Pitts and Wilbert Lee, each pardon authority separately investigated the clemency candidates as a prelude to their joint meeting to receive public testimony. Each then individually exercised his discretion to sign or refuse to sign a pardon which the Governor first signed and left on file with the Secretary of State. In this format, any attempt to review the "process" of pardon would necessarily have immersed the judiciary in the rationale of the decision makers, for the process itself had no substance or form beyond their individual investigations and decisions.
Executive Order No. 75-49 (Sep't. 11, 1975), filed with the Department of State on September 19, 1975.
In contrast to these "processes", the newly devised death sentence review process operates very much like all other administrative processes in the executive branch of Florida's government. The rules adopted for this purpose establish an "Office of Executive Clemency" headed by a "coordinator" and staffed by assistants. A "proper record" of all proceedings is maintained. Precise steps for review are prescribed, channeled by precise time frames, and the process once triggered requires (i) a hearing examiner to take written or oral testimony, (ii) an informal evidentiary proceeding, (iii) a required report to be filed by the hearing examiner within 60 days, (iv) a required hearing before the Governor and cabinet, (v) notice to applicants' attorneys and to counsel for the state, (vi) authority for both counsel to file "exceptions, briefs or memoranda" concerning the examiner's report, (vii) a prohibition against direct communications to the Governor or any cabinet member during the pendency of the proceedings, and (viii) a public explanation for granting or not granting clemency.
While this set of procedures is not asserted to bring death sentence review under the state's administrative procedure act, see Advisory Opinion to the Governor, 334 So.2d 561 (Fla. 1976), the parallel between the two processes is striking. Compare ch. 120, Fla. Stat. (1975). And see my dissenting advisory view, stated at 334 So.2d 563.
From this set of procedures, then, and not from the "traditional" process of clemency, petitioners assert their claim for fundamental fairness. The most ingenious of their arguments proceeds in this fashion:
I do not find the other aspects of asserted unfairness (denial of an impartial tribunal, lack of pre-articulated decisional standards, and a denial of allocution) to be constitutionally required in clemency matters. See Schick v. Reed, 419 U.S. 256, 95 S.Ct. 379, 42 L.Ed.2d 430 (1974).
(1) we have always had the constitutional power to review clemency processes for procedural fairness, although we have traditionally declined to exercise that authority;
(2) at least since Furman v. Georgia the ability of any state to execute its convicted criminals has become a unique constitutional problem;
408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). "Five members of the Court have now expressly recognized that death is a different kind of punishment than any other which may be imposed in this country." Gardner v. Florida, 430 U.S. 349, 357, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393, 401 (1977).
(3) the Fourteenth Amendment to the United States Constitution imposes a continuing obligation on state supreme courts to guard against the exercise of arbitrary discretion in state executions, by assuring that due process minima are met at all critical pre-execution stages; and
"It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion." Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1205, 51 L.Ed.2d 393, 402 (1977).
(4) the unique clemency process recently established in Florida in fact conflicts with the minimum standard required by Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) and Songer v. Florida, 430 U.S. 952, 97 S.Ct. 1594, 51 L.Ed.2d 801 (1977).
This syllogism cannot be ignored, for it is beyond dispute that the rules established for death sentence review permit Gardner-prohibited material to enter into the decisional process. Section 7B of the rules expressly describes the parole commission's report as "similar to a pre-sentence investigation report . . . a portion [of] which shall remain confidential." Gardner, of course, appears to preclude the use of that data in the mathematics of a life-death equation.
The issue inherent in petitioners' challenge to Florida's new death sentence review procedure asks this ultimate question: may the state, through its executive branch of government, take a human life after conducting an adversary proceeding in which the potential victim has been denied access to some of the data on the basis of which the decision was made, notwithstanding that the data need not have been considered, that the proceeding need not have been adversary, and that the proceeding need not have been established in the first instance? I would answer this critical question by saying that the Gardner decision does not clearly require a negative answer.
In Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), our death penalty statute was upheld on the authority of Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). In Gregg the United States Supreme Court very clearly indicated that its constitutional concern regarding the imposition of death is the judicial process alone, and not the discretionary stages which precede (prosecutorial discretion) or succeed (clemency) the judicial processes of trial and appellate review.
"The existence of these discretionary stages is not determinative of the issues before us. At each of these stages an actor in the criminal justice system makes a decision which may remove a defendant from consideration as a candidate for the death penalty. Furman, in contrast, dealt with the decision to impose the death sentence on a specific individual who had been convicted of a capital offense. Nothing in any of our cases suggests that the decision to afford an individual defendant mercy violates the Constitution. Furman held only that, in order to minimize the risk that the death penalty would be imposed on a capriciously selected group of offenders, the decision to impose it had to be guided by standards so that the sentencing authority would focus on the particularized circumstances of the crime and the defendant."
The Court's focus on the "imposition" of a death sentence in a judicial proceeding was reiterated in Gardner. Nothing yet said by the United States Supreme Court suggests that the discretionary decision whether or not to allow a judicially-approved death sentence is subject to the same due process strictures as are required for any judicial process employed to impose such a sentence. For that reason, and for the further reason that I would not engraft these due process requirements on the clemency powers conferred in Florida's Constitution, I conclude that the use of confidential materials in clemency proceedings is permissible.
See n. 9 above.
In sum, whatever may constitute constitutionally impermissible clemency processes, the defects asserted by these petitioners are not of that magnitude and their complaint should, as the majority concludes, be dismissed.