           FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
                 _____________________________

                          No. 1D18-91
                 _____________________________

THE SCHOOL DISTRICT OF
ESCAMBIA COUNTY, FLORIDA,

    Appellant,

    v.

SANTA ROSA DUNES OWNERS
ASSOCIATION, INC.,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Escambia County.
J. Scott Duncan, Judge.

                          May 30, 2019


ROWE, J.

     The Santa Rosa Dunes Owners Association, Inc., sued the
Escambia County Property Appraiser and Escambia County Tax
Collector, disputing a tax assessment of property underlying the
Association’s condominium development. The Association claimed
that its property was exempt from ad valorem taxation under
section 196.199(2)(b), Florida Statutes (2016). The School District
of Escambia County intervened in the suit and asserted that the
Association’s property should be taxed because the statutory
exemption was unconstitutional. The Association challenged the
District’s standing to intervene, arguing that the public official
standing doctrine barred the District’s constitutional challenge.
The trial court agreed that the District lacked standing and
entered summary judgment for the Association on the District’s
affirmative defenses. This appeal follows.

     The public official standing doctrine, first explained in State
ex rel. Atlantic Coast Line Railway Co. v. State Board of
Equalizers, 94 So. 681 (Fla. 1922), provides that “a public official
may not defend his nonperformance of a statutory duty by
challenging the constitutionality of the statute.” Crossings At
Fleming Island Cmty. Dev. Dist. v. Echeverri, 991 So. 2d 793, 794-
803 (Fla. 2008). The doctrine, grounded in the separation of
powers, recognizes that public officials are obligated to obey the
legislature’s duly enacted statute until the judiciary passes on its
constitutionality. Id. at 683. For that reason, a public official’s
“[d]isagreement with a constitutional or statutory duty, or the
means by which it is to be carried out, does not create a justiciable
controversy or provide an occasion to give an advisory judicial
opinion.” Dep’t of Revenue v. Markham, 396 So. 2d 1120, 1121 (Fla.
1981) (holding that the property appraiser lacked standing to
challenge an administrative rule), superseded by statute, §
195.092(2), Fla. Stat. (1980), as recognized in Crossings At Fleming
Island, 991 So. 2d at 802-03 (explaining that while the Legislature
partially overruled the holding in Markham by enacting section
195.092, which allows a property appraiser and any taxing
authority to challenge the validity of any “rule, regulation, order,
directive or determination of any agency of the state,” the
Legislature “did not alter the common law principle announced in
Atlantic Coast Line and Markham that property appraisers, as
public officials, lack standing to challenge the constitutionality of
a statute”).

     The parties do not dispute that the District is a public entity
and its officers are public officials. But the District contends that
the public official standing doctrine applies only when the
challenged statute is one that the public officials are “charged with
administering.” Section 196.199(2)(b) exempts from ad valorem
taxation certain leasehold interests in government-owned
property used for non-governmental purposes. The plain language
of the statute does not require the District to perform any duty.
The District’s lack of a duty under the statute, however, does not
resolve whether the District has standing to challenge the statute.

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     The Florida Supreme Court and this Court have on several
occasions considered challenges to the constitutionality of section
196.199(2)(b) brought by public officials. First, in Crossings At
Fleming Island, a county property appraiser challenged the
constitutionality of the statute. 991 So. 2d at 798. The supreme
court held that the property appraiser lacked standing to challenge
the statute because the property appraiser was a public official
charged with performing a specific duty under the statute—the
duty of determining whether property owners are entitled to an
exemption from taxation under the statute. In reaching this
conclusion, the supreme court reaffirmed the public official
standing doctrine and its holding in Atlantic Coast Line. Id. at
797.

     Next, in Island Resorts Investments, Inc. v. Jones, 189 So. 3d
917, 922-23 (Fla. 1st DCA 2016), this Court considered whether
the public official standing doctrine barred a challenge to the
statute brought by two public officials—the property appraiser,
who is charged with performing a duty under the statute, and the
tax collector, who is not charged with performing any duty under
the statute. Though the plain language of the statute did not
require the tax collector to perform any duty, this Court, citing the
decisions in Crossings at Fleming Island and Atlantic Coast Line,
concluded that the tax collector lacked standing to challenge the
constitutionality of section 196.199(2)(b). Island Resorts, 189 So.
3d at 922.

      The District is in the same position as the tax collector in
Island Resorts. Neither are charged with performing any duty
under section 196.199(2)(b). Still, the District argues it had
standing to challenge the constitutionality of the statute. The
District misunderstands the public official standing doctrine. The
doctrine exists to prevent public officials from nullifying legislation
through their refusal to abide by the law and requires them
instead to defer to the judiciary’s authority to consider the
constitutionality of a legislative act. Atl. Coast Line, 94 So. at 682-
83 (“The right to declare an act unconstitutional is purely a judicial
power, and cannot be exercised by the officers of the executive
department under the guise of the observance of their oath of office
to support the Constitution.”). The prohibition against public
officials attacking the constitutionality of a statute is therefore not

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limited to those public officials charged with a duty under the
challenged law. Consistent with the purpose of the doctrine, the
prohibition extends to public officials whose duties are “affected”
by the challenged law. See Crossings At Fleming Island, 991 So.
2d at 800 (finding that no common law or statutory development
since Atlantic Coast Line “has altered the basic principle, rooted in
the doctrine of separation of powers, that property appraisers must
abide by all applicable Florida statutes when assessing property
and therefore do not have standing to challenge the
constitutionality of such statutes”) (emphasis added); Dep’t of
Educ. v. Lewis, 416 So. 2d 455, 458 (Fla. 1982) (“State officers and
agencies must presume legislation affecting their duties to be valid,
and do not have standing to initiate litigation for the purpose of
determining otherwise.”) (emphasis added); Santa Rosa Cty. v.
Admin. Comm’n, Div. of Admin. Hearings, 642 So. 2d 618, 623 (Fla.
1st DCA 1994) [hereinafter Santa Rosa Cty. I], approved in part,
disapproved in part, 661 So. 2d 1190 (Fla. 1995) [hereinafter Santa
Rosa Cty. II] (same); Miller v. Higgs, 468 So. 2d 371, 374 (Fla. 1st
DCA 1985) disapproved on other grounds by Capital City Country
Club, Inc. v. Tucker, 613 So. 2d 448 (Fla. 1993) (same); Markham,
396 So. 2d at 1121 (“Disagreement with a constitutional or
statutory duty, or the means by which it is to be carried out, does
not create a justiciable controversy or provide an occasion to give
an advisory judicial opinion.”) (emphasis added).

     Even though section 196.199(2)(b) does not specifically
require the District to perform any duty, the statute’s operation
affects the District’s duty to levy ad valorem taxes under other
statutory provisions. See Art. VII, § 9, Fla. Const.; § 1011.71(1),
Fla. Stat. (2016) (providing that school districts seeking to
participate in the state allocation of funds for current operation
“shall levy on the taxable value for school purposes of the district”
a local effort millage rate); § 1011.04, Fla. Stat. (2016) (providing
that school districts are to “determine by resolution the amounts
necessary to be raised for current operating purposes and for each
district bond interest and sinking fund and the millage necessary
to be levied for each such fund, including the voted millage”); §
1001.42, Fla. Stat. (2016) (providing that the powers and duties of
the district school board include adopting a “resolution fixing the
district school tax levy . . . necessary to carry on the school program
adopted for the district for the next ensuing fiscal year as required

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by law”). The District argues that applying section 196.199(2)(b)
to grant the Association’s property an exemption will affect the
District’s ability to levy ad valorem taxes. Because the public
official standing doctrine broadly prohibits ministerial officers
from challenging legislative enactments, and because the statute
at issue affects the official duties of the District, the trial court
correctly found that the District lacked standing to challenge the
constitutionality of section 196.199(2)(b).

     The District argues that it may nonetheless attack the
constitutionality of the statute because the personal injury
exception to the public official standing doctrine applies. This
exception confers standing on a public official to bring a
constitutional challenge when the official can show injury to his
person, property, or other material right by the statute in question.
Crossings At Fleming Island, 991 So. 2d at 799 (quoting Barr v.
Watts, 70 So. 2d 347, 350 (Fla. 1953) (en banc)). The District
alleges it would have to refund about seven million dollars in ad
valorem tax revenue it has already collected and escrowed, and it
would lose its material and constitutional right to levy ad valorem
taxes, subjecting it to a loss of future tax revenue.

      The District’s alleged injuries are not the type of injuries
contemplated by the personal injury exception. See Green v. City
of Pensacola, 108 So. 2d 897, 900 (Fla. 1st DCA 1959). Rather, the
type of personal injury necessary to allow a public official to
challenge the constitutionality of a statute is limited to injuries
that do “not grow out of the obligation of his oath of office, nor out
of his official position.” Atl. Coast Line, 94 So. 2d at 601 (citing Bd.
of Public Instruction for Santa Rosa Cty. v. Croom, 94 So. 681 (Fla.
1909)); see also Green, 126 So. 2d at 900 (“It may be seriously
questioned whether the Comptroller’s failure to collect a tax
lawfully due the State of Florida would render him liable on his
official bond as well as subject him to impeachment for
nonfeasance in office.”). Here, the alleged injuries to the District
arise exclusively from the District’s official responsibilities to levy
ad valorem taxes. See Art. VII, § 9, Fla. Const.; § 1011.71(1), Fla.
Stat. (2016). The alleged injuries are thus not personal to the
District. The public official standing doctrine therefore bars the
District from challenging the constitutionality of section


                                   5
196.199(2)(b). For these reasons, the trial court’s order granting
summary judgment for the Association is AFFIRMED.

WINSOR, J., concurs; BILBREY, J., concurs in result.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


BILBREY, J., concurring in result.

     I am concerned that in past decisions this court may have
approved the expansion of the public official standing doctrine
beyond its historical roots. Both State ex rel. Atlantic Coast Line
Railway Co. v. State Board of Equalizers, 94 So. 681 (Fla. 1922),
and Department of Revenue v. Markham, 396 So. 2d 1120 (Fla.
1981), approved the public official standing doctrine to preclude
suit where a public official was challenging a matter concerning
the performance of that public official’s duties. Then in Santa Rosa
County v. Administration Commission, Division of Administrative
Hearing, 642 So. 2d 621, 623 (Fla. 1st DCA 1994), approved in part,
disapproved in part, 661 So. 2d 1190 (Fla. 1995), we expanded
Markham to apply the public official standing doctrine where there
was “[l]egislation which affects the duties of state officers and
agencies.”

      Any general law is by definition going to affect, in varying
degrees, the people of the State of Florida, including public
officials. See Schrader v. Florida Keys Aqueduct Auth., 840 So. 2d
1050, 1055 (Fla. 2003) (noting that a general law is one which
“materially affects the people of this state”). So it seems in Santa
Rosa County we arguably precluded any challenge by a public
official to most any general law.

     In Island Resorts Investment, Inc. v. Jones, 189 So. 3d 917, 922
(Fla. 1st DCA 2016), we were bound to follow the holding from
Santa Rosa County expanding the public official standing doctrine

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to “legislation which affects” the public official’s duties. See Sims
v. State, 260 So. 3d 509, 514 (Fla. 1st DCA 2018) (“Each panel
decision is binding on future panels, absent an intervening
decision of a higher court or this court sitting en banc.”). Our
holding in Island Resorts again applied the doctrine to legislation
beyond that which the public official was charged with
administering.

     We are of course now bound by Santa Rosa County and Island
Resorts. But even if we could apply only the more limited scope of
the public official standing doctrine from Markham, here it would
not avail the School District of Escambia County. In Miller v.
Higgs, 468 So. 2d 371 (Fla. 1st DCA 1985), disapproved in part,
Capital City Country Club, Inc. v. Tucker, 613 So. 2d 448 (Fla.
1993), we upheld the constitutionality of section 196.199(2)(b),
Florida Statutes. So even if the District had standing to sue, we
would be correct to affirm under Miller. I therefore agree
affirmance is the correct result.

                  _____________________________


David C. Willis, Daniel J. Gerber, and Christian H. Tiblier of
Rumberger, Kirk & Caldwell, P.A., Orlando; William A.
VanNortwick, Jr. of Akerman LLP, Jacksonville; and Diane G.
DeWolf of Akerman LLP, Tallahassee, for Appellant.

Edward P. Fleming and R. Todd Harris of McDonald Fleming
Moorhead, Pensacola, for Appellee.




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