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IN THE SUPREME COURT OF FLORIDA
CASE NOS.: SC00-2346, SC00-2348 & SC00-2349
_______________________________________________
PALM BEACH COUNTY
vs.
KATHERINE HARRIS, ET AL.
CANVASSING BOARD
VOLUSIA COUNTY
vs.
MICHAEL MCDERMOTT, ET
AL.
FLORIDA DEMOCRATIC
vs.
MICHAEL MCDERMOTT, ET
PARTY
AL.
_____________________________________________________
ON REMAND FROM THE SUPREME COURT
OF THE UNITED STATES
_____________________________________________________
AMICUS CURIAE BRIEF OF REPRESENATIVE LOIS FRANKEL, A
MEMBER OF THE FLORIDA LEGISLATURE AND THE MINORITY
LEADER OF THE FLORIDA HOUSE OF REPRESENTATIVES

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
I.
THE AMICUS CURIAE BRIEF FILED BY THE FLORIDA
LEGISLATURE WAS NOT ADOPTED BY APPROPRIATE
LEGISLATIVE PROCESSES.

II. THE FLORIDA LEGISLATURE HAS ADOPTED LAWS PRIOR TO
THE ELECTION IN THE SUBJECT MATTER IN CONFORMANCE
WITH FEDERAL LAW.
III.
THE INSTRUCTION OF THE FLORIDA LEGISLATURE TO THE
COURT AS TO THE CORRECT APPLICATION OF THE ENACTED
LAWS IS IMPROPER UNDER FLORIDA'S SEPARATION OF POWERS
DOCTRINE.
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
i

TABLE OF AUTHORITIES
Page(s)
CASES
Raines v. Byrd, 521 U.S. 811 (1997) ............................................... 5
Petition of Florida State Bar Ass'n, et al., 40 So.2d 902 (Fla. 1949) ......... 11
CONSTITUTIONAL AND STATUTORY AUTHORITIES
ARTICLE 3, FLORIDA CONSTITUTION ................................. passim
ARTICLE 2, s. 3, FLORIDA CONSITUTION ................................... 8
SECTION 102.168, FLORIDA STATUTES ...................................... 10
OTHER AUTHORITIES
FLA. HOUSE OF REP. R. 2.6(b) ................................................. . 6
FLA SENATE R. 1.4 ................................................................ 6
3 U.S.C. s. 5 ........................................................................... 9
ii

INTRODUCTION
Lois Frankel as a member of the Florida Legislature and as minority
leader of the Florida House of Representatives files this amicus curiae brief
solely for purposes of clarification regarding the presiding officers' amicus
curiae brief filed in this Court.
The rules of the Florida Senate and the Florida House of
Representatives permit the intervention in any suit by the presiding officers of
these bodies. Those rules are silent, however, regarding as to the
representations which must be made concerning the circumstances of the
filing.
The circumstances here require disclosure. Both the amicus curiae
brief filed by the presiding officers in this Court and the amicus curiae brief
filed in the United States Supreme Court by the presiding officers are as the
result of the unilateral decision of the President of the Florida Senate and the
Speaker of the Florida House of Representatives. They are not the result of
any vote of the Florida Senate or Florida House of Representatives, and as
such do not represent the position of the body of the Florida Legislature.
iii

ARGUMENT
I.
THE AMICUS CURIAE BRIEF FILED BY THE FLORIDA
LEGISLATURE WAS NOT ADOPTED BY APPROPRIATE
LEGISLATIVE PROCESSES.
The "Brief of the Florida Senate and House of Representatives as
Amici Curiae in Support of Neither Party" filed in this matter in the United
States Supreme Court purported to be a document expressing the views of
the Florida Senate and Florida House of Representatives. Additionally, the
Amicus Curiae brief filed in this Court by counsel representing the President
of the Florida Senate and the Speaker of the Florida House of
Representatives, as well, purports to be a document expressing the views of
the Florida Legislature.
The Amicus Curiae brief in fact was authorized, without notice,
debate, or approval, by only two of the 160 members of the Florida Senate
and House of Representatives.
While the Rules of the Florida Senate and Rules of the Florida House
of Representatives do permit in certain limited circumstances the President of
the Senate and Speaker of the House of Representatives to "authorize
counsel to initiate, defend, intervene in, or otherwise participate in any suit,"
iv

the United States Supreme Court has held that a position taken in litigation by
members of a legislative body must not be attributed to the legislative body
as a whole unless the body as a whole has specifically authorized its
members to take such a position. Raines v. Byrd, 521 U.S. 811, 829-30, n.
10 (1997).
In this case, the Florida Legislature at no point authorized the position
asserted in the Amicus Curiae brief purportedly filed on behalf of the Florida
Senate and Florida House of Representatives. The brief was filed in reliance
on House and Senate rules that generally authorize, respectively, the Speaker
of the House of Representatives and the President of the Senate to retain
counsel. But such a general authorization is not equivalent to a decision by
the legislative body. Id. at 829-30.
The Amicus brief purportedly filed on behalf of the Florida Legislature
in the case sub judice was filed under provisions of rules of the Florida
House of Representatives and the Florida Senate, which provide,
respectively:
The Speaker may authorize counsel to initiate,
defend, intervene in, or otherwise participate in any
suit1on behalf of the House, a committee or council
v

of the House, a Member of the House (whether in
legal capacity of Member or taxpayer), a former
Member of the House, or an officer or employee of
the House when such suit is determined by the
Speaker to be of significant interest to the House and
the Speaker believes that the interest of the House
would not be otherwise adequately represented.
Expenses incurred for legal services in such
proceedings may be paid upon approval of the
Speaker.
FLA. HOUSE OF REP. R. 2.6(b).
* * *
The President may authorize counsel to initiate,
defend, intervene in, or otherwise participate in any
suit1 on behalf of the Senate, a committee of the
Senate, a Member of the Senate (whether in legal
capacity of Member or taxpayer), a former Member
of the Senate, or an officer or employee of the Senate
when such suit is determined by the President to be
of significant interest to the Senate and when it is
determined by the President that the interest of the
Senate would not otherwise be adequately
represented. Expenses incurred for legal services in
such proceedings may be paid upon approval of the
President.
FLA. SENATE R. 1.4.
Under these rule provisions, the Speaker of the Florida House of Representatives and
the President of the Florida Senate, without conferring with the whole of the legislative
membership, hired counsel to draft the Amicus brief filed in this proceeding.
vi

The Florida Constitution creates the Florida Legislature and affirms its operating
parameters. Article III of the State Constitution deals with the Legislature and states in part:
Section 4. Quorum and procedure.--
. . . .
(e) The rules of procedure of each house shall
provide that all legislative committee and
subcommittee meetings of each house, and joint
conference committee meetings, shall be open and
noticed to the public. The rules of procedure of
each house shall further provide that all prearranged
gatherings, between more than two members of the
legislature, or between the governor, the president of
the senate, or the speaker of the house of
representatives, the purpose of which is to agree
upon formal legislative action that will be taken at a
subsequent time, or at which formal legislative action
is taken, regarding pending legislation or
amendments, shall be reasonably open to the public.
All open meetings shall be subject to order and
decorum. This section shall be implemented and
defined by the rules of each house, and such rules
shall control admission to the floor of each legislative
chamber and may, where reasonably necessary for
security purposes or to protect a witness appearing
before a committee, provide for the closure of
committee meetings. Each house shall be the sole
judge for the interpretation, implementation, and
enforcement of this section.
FLA. CONST. art. III, § 4.
Thus, it is clear from the Florida Constitution that the Florida Legislature acts through its
membership, following appropriate committee meetings, introduction of resolutions or bills,
vii

public input, deliberation by the legislative membership, and final votes on matters of legislative
concern.
Instead of following this constitutionally-established process, the House Speaker and
Senate President, without introducing an appropriate resolution or bill, without notice, without
subjecting same to public testimony, without membership deliberation, and without a vote of the
legislative membership, drafted and filed the Amicus brief in this Court, representing it as a brief
of the Florida Legislature.
The Amicus brief forwards an argument that places the Florida Legislature in
diametrical opposition to a separate branch of Florida Government. Article II of the Florida
Constitution specifies the branches of state government and reiterates that members of one
governmental branch shall not exercise the powers of another governmental branch:
Section 3. Branches of government. --
The powers of the state government shall be divided
into legislative, executive and judicial branches. No
person belonging to one branch shall exercise any
powers appertaining to either of the other branches
unless expressly provided herein.
FLA. CONST. art. II, § 3.
The Amicus brief is of great consequence and impact to the Florida constitutional
scheme. The position forwarded by the Amicus brief is not a position that should have been
taken lightly, and instead should reflect the most somber deliberative effort that could be
mustered in the Florida Legislature. But it does not. Instead, the amicus brief was filed by but
viii

two members of the 160-member Florida Legislature, under narrow rules purporting to
authorize the filing.
It is important for this Court, in evaluating the weight to be given to the referenced
amicus brief, to understand that the brief was filed without adherence to the legislative process,
and as such it does not bear the hallmarks of legislative action.
II.
THE FLORIDA LEGISLATURE HAS ADOPTED LAWS PRIOR TO THE
ELECTION IN THE SUBJECT MATTER IN CONFORMANCE WITH FEDERAL
LAW.
Federal law provides that the legislature of a state may establish laws enacted prior to
the day fixed for appointment of electors for finally determining controversies concerning the
appointment of electors. 3 U.S.C. s. 5. Under that section, the Legislature is authorized to
provide for determining controversies by "judicial or other methods or procedures . . ." Id. If
the legislature of a state has done so, and the controversies have been determined at least six
days prior to the time set for the meeting of the electors, the electors certified by the state "shall
be conclusive, and shall govern in the counting of the electoral votes as provided in the
Constitution . . . ." Id.
In Florida, the Legislature has prior to the day fixed for appointment of electors
determined the state's method for resolving controversies. It has done so by a judicial
procedure established through a duly-enacted law, section 102.168, Florida Statutes. Thus,
while the Legislature has "plenary" power to determine the method of resolving the
controversies referenced in federal law, it has done so. It has exercised its plenary power.
ix

There is nothing more left for the Legislature to do in this matter.
IV.
THE INSTRUCTION OF THE FLORIDA LEGISLATURE TO THE COURT
AS TO THE CORRECT APPLICATION OF THE ENACTED LAWS IS IMPROPER
UNDER FLORIDA'S SEPARATION OF POWERS DOCTRINE.
In the "MOTION OF THE FLORIDA LEGISLATURE TO PARTICIPATE AS
AMICUS CURIAE AND TO FILE A BRIEF," the presiding officers of each house, through
their counsel, assert as one of the Legislature's interests:
The correct application of laws enacted by the Florida Legislature pursuant to its
powers under the Constitution of the United States and the Florida Constitution;
In short, what the presiding officers seek to do is to interject the Legislature into the
proceedings constitutionally lodged in the judiciary. At least since Marbury v. Madison, it has
been the province of the judiciary to determine what the law is.
Florida's separation of powers doctrine is explicit in the Florida Constitution. No
person belonging to one branch of government may exercise any power appertaining to the
other branches. Art. II, s. 3, Fla. Const. The lawmaking power is explicitly granted to the
Florida Legislature in Article III, section 1 of the Florida Constitution, while the judicial power
is vested in the Florida Supreme Court and specified subordinate courts of this state by Article
V, section 1 of the Florida Constitution. Thus, the power to interpret the law is inherent in the
judicial branch, and not the legislative branch. As the Florida Supreme Court so eloquently
stated:
Under our form of government it is the right that each department of government has to
execute the powers falling naturally within its orbit when not expressly placed or limited
by the existence of a similar power in one of the other departments.
x

Petition of Florida State Bar Ass'n, et al., 40 So.2d 902 (Fla. 1949). The power to declare
what the law is may be exercised only by the judicial and the judiciary alone.
For the presiding officers, on behalf of the Florida Legislature, to instruct the judiciary
on the "correct application" of the laws that the Legislature has duly enacted will undermine the
doctrine of the separation of powers that is expressly provided in the Florida Constitution.
Further, the intercession of the presiding officers on behalf of the Legislature in this matter will
have the effect of undermining the confidence of the electorate in the judiciary, as well as the
independence with which the judiciary is cloaked in our constitutional system of democratic
government.

CONCLUSION
WHEREFORE, Amicus Curiae Senator Thomas E. Rossin respectfully requests that
the Court consider his arguments and, for the reasons stated above, to consider that the Amicus
Curiae Brief filed by the President of the Florida Senate and the Speaker of the Florida House
of Representatives does not represent the view of the Florida Legislature as a legislative body.

Respectfully submitted,
xi

Lois Frankel
Florida House of Representatives
Room 316, The Capital
Tallahassee, FL 32399
Telephone: (850) 488-9622
Fax: (850) 922-5912
Florida Bar #: 180409
xii

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