Petition — Standard Oil Co. v. Florida ex rel. Shevin
Supreme Court brief1976
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Iu the Supreme Court
OF THE
United States
Octroner Tervu. O75
; “ny
No. é 9 a 6 r4 &
Stanparp Or Compaxy or Canuirornta; Amerapa Hess
Corporation: Grice Om Correoration: Marnatuon
Oi. Company: Puteuips Perrotecum Company:
and Sranparp Or. Company (Onto),
Petitioners.
Vs,
Stare or Froripa ex rei. Suevix,
Pe sponds we,
PETITION FOR A WRIT OF CERTIORARI
to the United States Court of Appeals
for the Fifth Circuit
Nose K. Grecors
(‘ DouGrLas FLoyp
PILLSBURY, Mapison, 225 Bush Stree?
& SuTRO, Mailing Address P. O. Box 7880
Of Counsel. san Frar CA 94120
Davin S. BATCHELLER
Alfred | sPont 8 dine
SMATHERS & THOMPSON, Miami. FL 3313)
Of Counsel, Attorneys for Petitioner,
Standard Oil Company
of Cahfornia
(Other counsel listed mside cover
PERNAU -WALSH PRINTING CO. - 562 MISSION STRETT S/N FRANCISCO. CA 94105
Rogers, Towers, BAILEY
JONES & Gay
Of Counsel.
Muupank, Tween, Hapury
& McCoy
Of Counsel,
TRENAM, SIMMONS, KEMKER,
Scuarr & Barkin
Of Counsel.
Braprorp, WiutuiAMs, McKay,
KiapreLL, HAMANN &
JENNINGS,
Of Counsel,
SULLIVAN & CROMWELL,
Of Counsel.
Crow L. BAiLey
1300 Florida Title Building
Jacksonville, FL 32302
Rosert J. KELLY
P. O. Box 1872
Tallahassee, FL 32302
WituiaM E. JAcKson
One Chase Manhattan Plaza
New York, NY 10000
Attorneys for Petitwner,
Amerada Hess Corporation
Jesse P. Lutron
oun E. BatLtey
P.O. Box 2100
Houston, TX 77027
Harry P. Davis, Jn.
P.O. Box 7245
Station C
Atlante, GA 30309
Attorneys for Petitioner,
Gulf Oil Corporation
HARRY KEMKER
P. ©. Box 1102
Tampa, FL 33601
Witiiam J. Lowry
539 South Main Street
Findlay, OH
Attorneys for Petitioner,
Marathon Oil Company
REGINALD L. WILLIAMS
9th Floor, Dade Federal Savings Building
10! East Flagler Street
Miami, FL 33131
Lewis J. OvTAVIAN!
552 Frank Phillips Building
Bartlesville. OK 74004
Joun DICKEY
48 Wall Street
New York, NY 10005
Attorneys for Petitioner,
Phillips Petrolcum
Company
-1. KtnG RoSENDALE
The Standard Oil Company (Ohic)
Midland Building
Cleveland, OH 44115
Attorney for Petitioner,
Standard Oil Company
(Ohio)
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Table of Contents
Page
Se OE ic cdvcvdvensceesunauvennessbewheesseere 1
PL dd inn ucdcudcescoeescocessawusevessteeenweaees 2
Question EE vidcdeccéeduceviddeseneddessewadestat 2
DEED cc dcucun du tuuae hens eueawaneteaeaeue - 8
ES 25 GO GD. oon knvvccttuessaeetacenusasseneula 3
Boones Ger Gre Che WH coc cc ciccccccsccesceccseess 5
I. This Court should provide additional guidance for
the proper use of the rapidly emerging certification
SEED 6 s.ocesccccéetevecessacbiebenesseetisee 5
If. The minimal delay accompanying certification in this
action pales in comparison with the enormous savings
of judicial resources that it may achieve. This Court
should clarify the weight to be accorded possible delay
resulting from certification .............eeeeeeecees 8
III. The Court of Appeals failed adequately to recognize
the special competence of state courts in deciding
questions of state law. This Court should clarify the
degree of uncertainty that warrants certification in
the interest of sound judicial administration ........ 12
IV. The Court of Appeals improperly failed to recognize
the paramount interest of Florida in resolving a sensi-
tive internal question of the separation of powers.
This Court should clarify when the implication of
an important state policy justifies certification ...... 15
SD |. eggs boas bbee bbe eens sien 18
Table of Authorities
Cases Pages
Alabama Comm’n v. Southern R. Co., 341 U.S. 341 ...... 15
Allegheny County v. Mashuda Co., 360 U.S. 185 ......... 7
Askew v. Hargrave, 401 U.S. 476 ....... 0. cece eee eeees 16
Barnes v. Atlantic & Pacific Life Ins. Co. of Amer., 514
5g 565600060 s nN Ese Sn eeeveces 17
Boyd v. Bowman, 455 F.2d 927 .......:eeeeeeeeeeeeees 8
Buckley v. Valeo, 96 S.Ct. 612 ........c cece cee rere eeees 15
Burford v. Sun Oil Co., 319 U.S. 315 2... 2... eee eee ee eee 15
Clay v. Sun Insurance Office, 363 U.S. 207 ........-+-++. 5, 8
Colorado River Water Conservation District v. United
States, 96 S.Ct. 12386 ......... cece cece ence cece eeenes 17
England v. Medical Examiners, 375 U.S. 411 .........--. 6,12
Green v. American Tobacco Co., 304 F.2d 70 ............ 13
Green v. American Tobacco Company, 325 F.2d 673, certi-
event Gealed STT UG. OB ....ccccccccccccccccccccccs 14
Harrison v. N.A.A.C.P., 360 U.S. 167 ..........-- eee 14, 16
Hiram Ricker & Sons v. Students Inter. Meditation Soc.,
a ces eee eb besebdateccsecvevecesccos 8
Holland v. Watson, 153 Fla. 178, 14 So.2d 200 ........... 13
Hopkins v. Lockheed Aireraft Corporation, 394 F.2d 656. .10, 17
Imel v. United States, 523 F.2d 853 .......... cece eeees 8
Kaiser Steel Corp. v. W. S. Ranch Co., 391 U.S. 093
Nee ee ee pubeheNeseneeenecececes 14, 15, 16
Lehman Brothers v. Schein, 416 U.S. “85 ............5. 5, 6,11
Leiter Minerals, Inc. v. United States, ©" *° U.S. 220 ...... 1
Life Insurance Company of Virginia v. ~ ifflett, 380 F.2d
ge er eT TTT eT TE eT T TT ETT TT 14
Louisiana P. & L. Co. v. Thibodaux City, 369 U.S. 25 ....
06 BLA PUI RP TLE meer eT ee ee Tere TTT LETT Te 7, 15, 16
Martinez v. Rodriquez, 394 F.2d 156 ......... 66 eeeeeeee 17
Martinez v. Rodriquez, 410 F.2d 729 ....... 0.06 eee ee ees 5-6, 14
TaBLe oF AUTHORITIES iii
Pages
Maryland Casualty Company v. Hallatt, 326 F.2d 275,
certiorari denied 377 U.S. 932 ...........cceeceeecvees 9
Meredith v. Winter Haven, 320 U.S. 228 ................ 6,17
National Ed. Ass’n Inc. v. Lee County Bd. of Public
Bette... GEG PB GEE ccccccccccccvccccccccccecccoceces 10
Point East One Condominium Corporation, Ine. v. Point
East, S.D.Fla., No. 73-1815-Civ-CA ..........ccceceees 13
Propper v. Clark, 337 U.S. 472 ...........eccseceseeces 15-16
Railroad Comm’n v. Pullman Co., 312 U.S. 496 .......... 9
Ranch Company, W. S. v. Kaiser Steel Corporation, 388
gg ets RE SO errr eT Tee Te TTT Tree Tre 14
ee Oe ee. ee Ge, GD dcdeccevecsccudddéedessee 14, 15
Ricker, Hiram & Sons v. Students Inter. Meditation Soc.,
i PED <dinre sere seeeed duseeineesees eke td nes 8
Robinson v. United States, 518 F.2d 1105 .............. 8
Schein v. Chasen, 478 F.2d 817, vacated 416 U.S. 386 .... 7
State v. Bryan, 50 Fla. 293, 39 So. 929 .............0005. 13
ee ee Ge, Oe A. BD cccccccecceseccesceecseces 13
State v. S. H. Kress & Co., 115 Fla. 189, 155 So. 823 .... 13
United Services Life Insurance Company v. Delaney, 328
F.2d 483, certiorari denied 377 U.S. 935 ............. 14
United States v. Buras, 475 F.2d 1370, certiorari denied
ER Pe ra a ene Pee Yemen Py ae 7,8
W. S. Ranch Company v. Kaiser Stee! Corporation, 388
SG EEF Se eR AS grea re ee ae nT eee a 14
ee rr Cr Pe Te. ccc gne nes eeseseseeses 8
Youngstown Co. v. Sawyer, 343 U.S. 579 ............0055 15
Constitutions
Florida Constitution
MED v6 6c 46 06666ebd bu eeeccesceceseeoeses 13
Article IV
DEE KGdeceecoecsecencsccsestcesesdenecesoonceeses 3,13
DD cecucccosceccccecesssceucescesesocsoeeoncceqe 3
ESS
iv TABLE OF AUTHORITIES
Statutes
Florida Statutes Pages
CPGGEL onc cccccccccccrccccccccccccesssesesosesees 3
Uniform Certification of Questions of Law Act, 12 Uniform
Rasen Ammatatel GOBER 2. cccccccccccccccccscccescccces 5, 6
United States Code
Tithe DB, S$ BBBET) ..cccccccccccccccccccccccesccces 2
Other Authorities
American Law Institute, Study of the Division of Juris-
diction between State and Federal Courts (1968)
Commentary, pp. 292-296 ........-.ceeeeeeceeecenns 6
GRTBR(E) oncccccccccccccccccccsccccccsceveececsees 6
CBTBEIE) no cccccccccccccccccccesccccscccesesccesees 6
Federal-Question Abstention: Justice Frankfurter’s Doctrine
in An Activist Era (1967), 89 Harvard Law Review 604 7
Florida’s Interjurisdictional Certification: A Reexamination
to Promote Expanded National Use (1969) 22 University
of Wiewlda, Law Boview Bh... cccccccccccccccceccccses 6
Hart & Wechsler, The Federal Courts and the Federal
System (2d Ed. 1973) .......ceeeeeeeeeseeeeeeeees 7, 14, 16
Kurland, Toward a Cooperative Judicial Federalism: The
Federal Court Abstention Doctrine, 24 F.R.D. 481 ...... 5, 6
Restatement, Judgments, § 41 ............. eee ee ee eeeeee 9
Vestal, The Certified Question of Law (1951) 36 Iowa Law
oe Ee .c ncctekesunes shadeddeseeeueeessiodast ; 6
—
Iu the Supreme Court
OF THE
United States
Octroser Term, 1975
No.
Sranparp Om Company or CaLirornia; AMERADA Hess
Corporation; GutF Or Corporation; MaraTHoN
Om Company; PHiuirs PeTroLeum CoMPany;
and Sranparp Or Company (Ouro),
Petitioners,
vs.
SraTe oF FLorIDA EX REL. SHEVIN,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
to the United States Court of Appeals
for the Fifth Circuit
Petitioners respectfully pray that a writ of certiorari
issue to review the decision of the United States Court
of Appeals for the Fifth Circuit in this action, dated
January 22, 1976.
OPINIONS BELOW
A copy of the opinion of the Court of Appeals, re-
ported at 526 F.2d 266, is appended hereto (Appx., p. Al).
2
Also appended are copies of the notice of the Court of
Appeals’ order denying rehearing en banc (Appx., p.
A23); the order of the United States District Court for
the Northern District of Florida, dated July 22, 1974
(the decision reviewed by the Court of Appeals; Appx.,
p. A25); and the district court’s related order of No-
vember 30, 1973 (Appx., p. A27).
JURISDICTION
The decision of the Court of Appeals was entered Janu-
ary 22, 1976. A timely petition for rehearing en banc
was denied on March 10, 1976 (529 F.2d 523; Appx., p.
A23). This petition was filed within ninety days of that
date. This Court has jurisdiction under 28 U.S.C.
§ 1254(1).
QUESTION PRESENTED
The majority of the Court of Appeals refused to cer-
tify to the Florida Supreme Court for decision the ques-
tion of the authority of the Florida Attorney General
to institute a massive Federal antitrust action in Fed-
eral court, allegedly in behalf of all the departments,
agencies, and political subdivisions of the state, but with-
out any authorization from the governmental entities he
purported to represent. The question is whether, in re-
fusing to certify to the Supreme Court of Florida this
state-law question of vital local concern, the Court of Ap-
peals unacceptably failed to make proper use of the
certification procedure to promote sound judicial adminis-
tration and a cooperative Federalism.
3
STATUTES INVOLVED
A copy of Florida Statutes, § 25.031, providing for
Federal court certification of questions to the Supreme
Court of Florida for decision is appended (Appx., p.
A364).
STATEMENT OF THE CASE
Petitioners are oil company defendants in a massive
antitrust action instituted by the Attorney General of
Florida in the United States District Court for the North-
ern District of Florida. The Attorney General purported
to sue on behalf of the state, and all departments, agen-
cies, and political subdivisions of the state. As the Court
of Appeals noted, the complaint “alleged a worldwide
scheme of anticompetitive activities in the production,
transportation, refining and marketing of petroleum and
petroleum products. The Attorney General seeks treble
damages, divestiture, and injunctive and declaratory re-
lief” (Appx., p. Al n.1).
Defendants moved to dismiss the complaint on the
ground that the Attorney General of Florida, under
Florida law, lacks the authority to initiate such a broad-
sweeping Federal cause of action in Federal Court with-
out any authorization from the state departments, agen-
cies, and political subdivisions on whose behalf he is al-
legedly suing. Under the Florida Constitution (Art. IV,
§4: Appx., p. A35) the Attorney General is only one of
six elected officers of the state Cabinet who, together with
the Governor and the Lieutenant Governor, exercise the
primary executive power of the State (Art. TV, $6;
Appx., p. A36).
4
The district judge stayed the action to permit the
Florida Attorney General to bring an action for declara-
tory judgment in Florida state court to resolve the ques-
tion of his authority, observing that “throughout the his-
tory of Florida * * * there is great doubt as to the outer
perimeter of the authority of the Attorney General”
(Appx., p. A28), and that “the all-important question which
is before this Court has not been directly put to the
Florida courts” (Appx. p. A31).
The Attorney General advised the district court that
he did not intend to seek such declaratory relief. The
district court then dismissed plaintiff’s action on the
ground that tere was “nothing in the record to show
any action by the legislature or even the Cabinet of the
State of Florida, or any agency, department or political
subdivision of the State of Florida, authorizing the insti-
tution of this suit” (Appx., p. A26).
On appeal, a divided panel of the Court of Appeals
declined to certify the question to the Supreme Court of
Florida. and on the merits reversed the district court
and sustained the authority of the Florida Attorney Gen-
eral, relying on perceived inherent common law powers of
the Attorney General. The panel nevertheless conceded
that “only the Florida Supreme Court can decide this state
law question in a manner that is, by definition, correct”
(Appx., p. A16). The dissenting judge urged that the
question be certified :
“Under my concept of federalism, that Tribunal
should he the one to delineate the authority, power,
and duties of its Attorney General * * * especially
where, as here, the authority is not express and,
ee 7
5
at the best, can only be supplied by implication”
(Appx., pp. A20-A21).
REASONS FOR GRANTING THE WRIT
The proper use of the certification procedure is a
question of rapidly increasing importance in the Federal
courts. No less than 14 states now permit certification’
and this recent and accelerating trend can only be ex-
pected to continue. Yet despite the fact that the certifica-
tion device offers immense potential for the realization
of a “cooperative judicial Federalism,” and for promot-
ing sound and efficient judicial administration in an era
of unprecedented docket pressure in the Federal courts,
the decisions of this Court (e.g., Lehman Brothers v.
Schein (1974) 416 U.S. 386; Clay v. Sun Insurance Office
(1960) 363 U.S. 207) offer little concrete guidance on the
standards that should govern its use.
I. THIS COURT SHOULD PROVIDE ADDITIONAL GUIDANCE
FOR THE PROPER USE OF THE RAvIDLY EMERGING CER-
TIFICATION PROCEDURE
The present decision refusing to submit to the Supreme
Court of Florida a decision peculiarly within its com-
petence, and of vital concern to the state, even if it could
be justified in the context of abstention, evidences a basic
misconception of the proper use of the “remarkably help-
1 Alabama, Colorado, Florida, Hawaii, Indiana, Louisiana, Maine,
Maryland, Massachusetts, Minnesota, Montana, New Hampshire,
Oklahoma, Washington. The adoption of the Uniform Certification
of Questions of Law Act in 1967 (12 Uniform Laws Annotated 49)
ean be expected to promote even greater proliferation of state
provisions for certification. Prior to 1965, only Florida permitted
certification.
2Kurland, Toward a Cooperative Judicial Federalism: The
Federal Court Abstention Doctrine (1959) 24 F.R.D. 481, 488-489.
is ae ae
6
ful certification procedure” (Martinez v. Rodriquez (5
Cir. 1969) 410 F.2d 729, 730).
A major deterrent to abstention by the Fede »al courts
has heen the prolonged delay that that procedure may
occasion (see England vy. Medical Examiners (1964) 375
U.S. 411, 423; Douglas, J. concurring). Certification, in
contrast, involves significantly less expense and delay. It.
achieves the desirable benefits of abstention without the
accompanying logistical problems. For this reason it
should be more generously approached (England vy. Médi-
cal Examiners (1964) 375 U.S. 411, 433-435; Douglas, J.
concurring).* In Lehman Brothers v. Schein (1974) 416
U.S. 386, this Court observed that certification “does, of
course, in the long run save time, energy, and resources
and helps build a cooperative judicial federalism” (416
U.S. 391). It therefore ordered reconsideration of certifi-
cation, despite the holding of Meredith v. Winter Haven
(1943) 320 U.S. 228, that difficulties of ascertaining state
law do not in themselves justify abstention (320 U.S.
234).
’The commentators have frequently pointed to certification as a
solution to the delay and expense accompanying abstention. See,
e.g., Commissioners’ Prefatory Note, Uniform Certification of
Questions of Law Act, 12 Uniform Laws Annotated 49-51; Amer-
ican Law Institute, Study of the Division of .J urisdiction Between
State and Federal Courts (1968), Commentary, pp. 292-296 - Vestal,
The Certified Question of Law (1951) 36 Iowa L.Rev. 629, 643-647 ;
Kurland, Toward a Cooperative Judicial Federalism: The Federal
Court Abstention Doctrine (1959) 24 F.R.D. 481, 489; Note,
Florida’s Interjurisdictional Certification: A Reexamination to
Promote Expanded National Use ( 1969) 22 U.Fla.L.Rev. 21, 27-29.
Compare American I.aw Institute’s proposed codification of the
abstention doctrine (Study of the Division of Jurisdiction Between
State and Federal Courts (1968) § 1781(¢) ), with its more liberal
provision for certification (§ 1781(e) ),
Virtually all of the commentators agree on the pressing need for
greater definition of standards.
7
The Court of Appeals erroneously failed to recognize
the immense savings in judicial resources that certifica-
tion could achieve in this case, with only minor incon-
venience to the parties. | ndeed, what is at stake is not
simply the possibility of an incorrect decision on a ques-
tion of state law, but the potential that this entire mas-
Sive action may later be found to have been improper
in its inception, resulting in an intolerable—almost_in-
comprehensible—waste of scarce judicial resources (infra,
pp. 8-11).
The divergent views of this Court on the question of
abstention (compare Allegheny County vy. Mashuda Co.
(1959) 360 U.S. 185, with Louisiana P. & L. Co. vy. T hibo-
daux City (1959) 360 U.S. 25) have produced a vacillat-
ing and often conflicting line of decisions. As a leading
text puts it, “given the difficulties of understanding and
reconciling the Supreme Court decisions, it should not
occasion surprise to discover that the court of appeals’
decisions on when abstention is proper in state-law cases
are not harmonious” (Hart & Wechsler, The Federal
Courts and the Federal System (2d Ed. 1973) 1005; see
also Note, Federal-Question Abstention: Justice Frank.
furter’s Doctrine in An Activist Era (1967) 80 Harv.
L.Rev. 604). It is equally true that there exist widely
differing approaches on certification among the judges
of the courts of appeals, as illustrated by the sharp divi-
sions in such cases as United States v. Buras (5 Cir.
1972) 475 F.2d 1370, 1371, certiorari denied (1973) 414
U.S. 865, and Schein v. Chasen (2 Cir. 1973) 478 F.24
817, 819, 825, vacated (1974) 416 U.S. 386. In the former
ease, the dissenting judge observed that “in these times
when comity and abstention have become the by-line for
SS "ZN'SSSSSS ee
i i i i ee
8
Federal Judges, it is unfortunate that the Fifth Circuit
adopts this head-in-the-sand re jection of the State’s
effort to alleviate our Erie burden” (475 F.2d 1375).
No single decision could be expected to resolve these
ambiguities. But the plainly erroneous result in this case
offers a timely and important opportunity to provide
concrete guidance on the proper use of the certification
procedure. This Court should grant the petition to miti-
gate the divergent approaches to this important ques-
tion.*
Il. THE MINIMAL DELAY ACCOMPANYING CERTIFICATION
IN THIS ACTION PALES IN COMPARISON WITH THE
ENORMOUS SAVINGS OF JUDICIAL RESOURCES THAT IT
MAY ACHIEVE. THIS COURT SHOULD CLARIFY THE
WEIGHT TO BE ACCORDED POSSIBLE DELAY RESULTING
FROM CERTIFICATION
In declining to use the certification device, provided
“with rare foresight” (Clay v. Sun Insurance Office
(1960) 363 U.S. 207, 212) by the Florida legislature, the
Court of Appeals placed heavy emphasis on the poten-
tial for delay, which it considered “particularly signifi-
cant in the context of this case.” “! Whe find the price of
certainty too high, in terms of delay which may prejudice
the plaintiffs’ rights to a speedy resolution of the merits”
(Appx., pp. A19-A20).
‘Compare the restrictive approach of the panel majority in this
case with the more liberal decisions of the First Cireuit in Hiram
Ricker & Sons v. Students Inter. Meditation Soc. (1 Cir. 1974)
501 F.2d 550, the Seventh Cireuit in Wecker v. Kilmer (7 Cir.
1972) 471 F.2d 782, and another panel of the Fifth Cireuit in
Boyd v. Bowman (5 Cir. 1972) 455 F.2d 927. Compare the ap-
proach of the Ninth Cireuit in a tax case (Robinson v. United
States (9 Cir. 1975) 518 F.2d 1105), with the more liberal ap-
proach of the Tenth Cireuit in a tax ease (Imel v. United States
(10 Cir. 1975) 523 F.2d 853).
ete eeee EE ee
9
The court’s basically mistaken and unacceptable ap-
proach to certification is nowhere more apparent than
in its treatment of possible “delay.” The court simply
disregarded the disastrous consequences not only for
the parties, but for the Federal courts, if this action is
permitted to go forward without any authoritative deter-
mination of the authority of the Attorney General to
maintain it. This is no routine tort or contract action.
It is a massive Federal antitrust action that will con-
sume literally millions of dollars and as much as a decade
of the time of the congested Federal courts and of the
parties. In view of the generally poor record of the
Fifth Cireuit in predicting local law (infra, p. 14), this
immense burden may well be entirely unjustified and
avoidable. Yet, several years hence a decision of a Flor-
ida court contrary to that of the two-member majority
here could nullify all of the proceedings to date.*® In
Railroad Comm’n v. Pullman Co. (1941) 312 U.S. 496,
this Court recognized that the “tentative answer” of a
Federal court “may be displaced tomorrow by a state
adjudication” (312 U.S. 500). An unhappy example—
likely to be repeated with far more serious consequences
here—is Maryland Casualty Company v. Hallatt (5 Cir.
1964) 326 F.2d 275, in which the Fifth Circuit found it
necessary to undo trial proceedings consuming over two
years in light of an intervening state-court repudiation
of its earlier decision.
‘There is no final judgment in this action. The decision of the
Fifth Circuit is therefore not res judicata, even in a declaratory
judgment action between the same parties (see, Restatement, Judg-
ments, § 41). The Fifth Cireuit has expressly held that “law of the
ease” must give way to the primacy of state law as declared by
state courts (Maryland Casualty Company v. Hallatt (5 Cir. 1964)
326 F.2d 275, 276-277, certiorari denied (1964) 377 U.S. 932).
10
Any possible minor delay in the certification process
pales to insignificance in comparison with the very real
prospect of a later negation of all of the proceedings in
this massive action since its inception. The Court of Ap-
peals’ narrow approach to the certification procedure
must be corrected to preclude the possibility of such an
immense and unjustified waste of judicial resources.
The Court of Appeals majority also failed to recognize
the increasingly prompt resolution of certified questions
by the Florida Supreme Court. In Hopkins v. Lockheed
Aircraft Corporation (5 Cir. 1968) 394 F.2d 656, Chief
Judge Brown commended the “workable, administra-
tively efficient and expeditious” (394 F.2d 657) process of
certification to the Florida Supreme Court. He observed
“in these days of our exploding docket and the unavoid-
able delay as we try to cope with our overcrowded case
load [Shafroth, Survey of the United States Courts of
Appeals, 1967] this slight period of time to afford Flor-
ida the opportunity to settle the issue presented demon-
strates that delay really is not an insurmountable problem
in the certification procedure” (394 F.2d 657). Likewise in
National Ed. Ass’n, Inc. v. Lee County Bd. of Public
Instr. (5 Cir. 1972) 467 F.2d 447, the court noted the
“consistently prompt and well considered answers which
our certified questions have thus far evoked” and recog-
nized that certification is a “relatively expeditious way
to substitute informed judgment for informed guesses”
(467 F.2d 449). These views cannot be reconciled with the
approach of the majority here.
The panel majority in this case likewise ignored the
fact that certification is a desirable judicial improve-
11
ment, often commended as a remedy for the delay that
has influenced this Court to urge caution in the use of
abstention (see Lehman Brothers v. Schein (1974) 416
U.S. 386, 394; Rehnquist, J., concurring). It frequently
operates to save time that Federal courts would other-
wise spend laboring over decisions they are ill-suited
to make. It is, for example, doubtful that proper use
of certification would have caused any delay at all in this
case.® If possible “delay” accompanying the use of the
certification process is nevertheless to be given the dis-
proportionate significance it was accorded by the major-
ity below, the basic purpose of the helpful certification
procedure will inevitably be frustrated.
®If the Court of Appeals had granted the motion of certain
appellees to certify the question, filed in October of 1974, the
answer to the certified question would in all probability have been
received before it rendered the present decision, some 17 months
after the notice of appeal was filed, and 13 months after the briefs
were submitted.
The procedural complexities engendered by the failure to certify
the question are illustrated by the fact that some of the defendants
in this action have now commenced an action for declaratory relief
concerning the authority of the Attorney General in a Florida
Cireuit Court (Mobil C ation, et al. v. Robert L. Shevin,
me General, ae Foca ranges oe pe
trial, e ensuing appellate p ings, an eir potential for
ultimately upsetting this action after substanti i
could all have been avoided by certification.
a .
ee a ee
12
Ill THE COURT OF APPEALS FAILED ADEQUATELY TO
RECOGNIZE THE SPECIAL COMPETENCE OF STATE
COURTS IN DECIDING QUESTIONS OF STATE LAW.
THIS COURT SHOULD CLARIFY THE DEGREE OF UN-
CERTAINTY THAT WARRANTS CERTIFICATION IN THE
INTEREST OF SOUND JUDICIAL ADMINISTRATION
A fundamental underpinning of the abstention doctrine
has been a due regard for the respective competence of
the Federal courts to resolve questions of Federal law,
and of state courts to resolve questions of state law.
‘“Abstention is a * * * vehicle for according appropriate
deference to the ‘respective competence of the state and
federal court systems’” (England v. Medical Examiners
(1964) 375 U.S. 411, 415).
The majority of the Court of Appeals turned their
backs on the special competence of the Florida Supreme
Court on questions of local law, even though they pur-
ported to recognize that “only the Florida Supreme Court
can decide this state law question in a manner that is,
by definition, correct” (Appx., p. Al6). In declining to
certify the question, they relied principally on their con-
clusion that “in our view, this simply is not an extremely
close question” (Appx., p. A16). But the majority recog-
nized that no statute or constitutional provision resolves
the question. There is likewise no decision of the Florida
Supreme Court upholding alleged inherent common law
powers of the Attorney General in the same or a closely
related situation. Instead, the court reviewed a number of
Florida cases from 1868 to date, carrying their language
outside of its context in order to predict what the
Supreme Court of Florida might do if presented for the
first time with a case such as the present (Appx., pp.
13
A6-A14). Clearly this was no sumple application of settled
state law.’
The majority’s conclusion that the question is free
from doubt is difficult to square with the views of the
dissenting judge that “there is much room for doubt that
by implication the Attorney General has authority ‘pre-
scribed by law’ to bring this particular suit, freighted as
it is with much expense and potentially heavy court
costs” (Appx., p. A22). It is also significant that the dis-
trict judge, the only judge from Florida to sit on this
case, has held that the Attorney General does not have
authority under Florida law to institute this action.®
7As the district judge pointed out, the Florida Attorney General,
as one of six elected Cabinet officers, exercises only that power
“prescribed by law” (Art. IV, § 4; Appx., p. A35). Article IT,
section 3 of the state Constitution further provides that “no person
belonging to one branch [of the state government] shall exercise
any powers appertaining to either of the other branches unless
expressly provided herein.”
The majority’s principal authorities not only were decided more
than forty years ago, but involved the traditional power to main-
tain proceedings quo warranto (State v. S. H. Kress & Co. (1934)
115 Fla. 189, 155 So. 823; State v. Bryan (1905) 50 Fla. 293, 39
So. 929; State v. Gleason (1868) 12 Fla. 190). Those decisions have
since been limited to their context by the Florida Supreme Court
(Holland vy. Watson (1943) 153 Fla. 178, 14 So.2d 200, 201), and
are far removed from the present action. Compare Green v.
American Tobacco Co. (5 Cir. 1962) 304 F.2d 70, 86, certifying
the question because “there is no Florida decision precisely in
point and so clearly on all fours as to be dispositive of this question
or proposition of law.”
East (S.D.Fla., Oct. 17, 1974) No, 73-1815-Civ-CA) again by a
judge versed in Florida law. Thus, of five judges to consider the
14
The majority’s “considerable confidence” (Appx., p.
A16) must also be appraised in light of the consistently
poor record of the Fifth Circuit in determining questions
of state law. Cataloging the cases in United Services
Life Insurance Company v. Delaney (5 Cir. 1964) 328
F.2d 483, certiorari denied (1964) 377 U.S. 935, Chief
Judge Brown observed that “both Texas and Alabama
have overruled decisions of this Court, and the score in
Florida cases is little snort of staggering” (328 F.2d
486).°
This Court has net hesitated to approach unduly con-
fident predictions of toeal law with skepticism where other
considerations strongly indicated the propriety of absten-
tion (e.g., Reetz v. Bozanich (1970) 397 U.S. 82, 86-87 ;
Kaiser Steel Corp. v. W. S. Ranch Co. (1968) 391 U.S.
993; Harrison v. N.A.A.C.P. (1959) 360 U.S. 167, 176-
177). The Court of Appeals should be required to accord
greater deference to local courts in a ease such as the
present, in which the question is of vital loeal concern and
the consequences of a wrong guess may be disastrous.
Because the degree of uncertainty necessary for certifica-
tion “does not emerge easily from analysis of [this
Court’s] decisions” (Hart & Wechsler, The Federal Courts
and the Federal System (2d Ed. 1973) 991), this Court
*For a more recent review of erroneous predictions of state law,
see the dissent in W. S. Ranch Company vy. Kaiser Steel Corpora-
tion (10 Cir. 1967) 388 F.2d 257, 262, 264-265 and nn. 11-15,
reversed per curiam (1968) 391 U.S. 593. Some notable examples
are Green v. American Tobacco Company (5 Cir. 1963) 325 F.2d
673, 674, certiorari denied (1964) 377 U.S. 943 (“[ certification }
has saved this Court * * * from committing a serious error * * *
which might have resulted in a grave miscarriage of justice’’) ;
Martinez v. Rodriquez (5 Cir. 1969) 410 F.2d 729, 731 n. 5 (“we
have been saved from numerous wrong guesses”) : Life Insurance
Company of Virginia v. Shifflet (5 Cir. 1967) 380 F.2d 375.
ane ee ne eee
15
should grant the petition to clarify the proper use of the
certification procedure.
——
IV. THE COURT OF APPEALS IMPROPERLY FAILED TO
RECOGNIZE THE PARAMOUNT INTEREST OF FLORIDA
IN RESOLVING A SENSITIVE INTERNAL QUESTION OF
THE SEPARATION OF POWERS. THIS COURT SHOULD
CLARIFY WHEN THE IMPLICATION OF AN IMPORTANT
STATE POLICY JUSTIFIES CERTIFICATION
This action presents a sensitive and important local
issue of separation of powers which is properly for the
Supreme Court of Florida to resolve.’ It is a question
going to the basic political structure of the state. Just as
in Louisiana P. & L. Co. v. Thibodaux City (1959) 360
U.S. 25, the present question is “intimately involved with
the sovereign prerogative,” especially because it concerns
“the apportionment of governmental powers” among the
branches of government (360 U.S. 28). Just as in Kaiser
Steel Corp. v. W. S. Ranch Co. (1968) 391 U.S. 593, the
question is “one of vital concern” to the state (391 U.S.
594).1! On this ground alone, the question should have
been certified in this case.
°This Court has been vigilant to prevent small as well as large
encroachments on the separation of powers which lies “at the heart
of our Constitution”. (Buckley v. Valeo (1976) 96 S.Ct. 612,
682; see Youngstown Co. v. Sawyer (1952) 343 US. 579, 635).
In our Federal system, similar questions under Florida law
should be decided by the highest court of that state.
‘And see, Reetz v. Bozanich (1970) 397 U.S. 82, 87 (“a matter
of great state concern”); Alabama Comm’n vy. Southern R. Co.
(1951) 341 U.S. 341, 347 (an “essentially local problem”) ; Burford
v. Sun Oil Co. (1943) 319 U.S. 315, 332 (“so clearly involves
basic problems of Texas policy” that “Texas courts [should have]
the first opportunity to consider” the question).
The present case is thus far different from Propper v. Clark
(1949) 337 U.S. 472, which presented no issue of comparable local
importance. Additionally, Propper involved the use of the more
ee
16
The Court of Appeals’ majority purported to recognize
that “this point has some validity” (Appx., p. A18), but
went on to minimize considerations of comity because “the
fact that this is primarily a federal case, and one which
has not been ‘lured’ into federal court by means of the
diversity jurisdiction, renders considerations of federal-
state comity” less persuasive (Appx., p. A19). This reason-
ing finds not the slightest support in any of the decisions
of this Court, which have applied the same standards in
Federal question cases as in diversity cases (see Askew
v. Hargrave (1971) 401 U.S. 476; Harrison v. N.A.A.C.P.
(1959) 360 U.S. 167; ef. Leiter Minerals, Inc. v. United
States (1957) 352 U.S. 220). The “distinction” if anything
cuts the other way. As noted commentators have observed,
“since a major purpose of the [diversity] jurisdictional
grant is to provide a neutral forum for the determination
of state law issues” this purpose arguably “would be un-
dermined by abstention” (Hart & Wechsler, The Federal
Courts and the Federal System (2d Ed. 1973) 989).22
cumbersome abstention, rather than the certification procedure,
and at best would have resulted in the avoidance of the decision
of a Federal question. In the present case, certification may en-
tirely avoid the immense burden of a massive antitrust action on the
congested Federal docket. And, it is too late in the day to suggest
that certification should be limited to eases in equity (337 U.S.
491), or to those in which a Constitutional issue may be avoided
(337 U.S. 489; see Kaiser Steel Corp. v. W. 8S. Ranch Co. (1968)
391 U.S. 593; Louisiana P. & L. Co. v. Thibodaux City (1959) 360
U.S. 25).
The Court of Appeals also relied on its deference to the
opinion of the Attorney General, and the fact that he had pro-
ceeded in the action “without apparent opposition” from the
governmental entities purportedly represented ( Appx., p. Al8).
But the former can have little weight in a separation of powers
controversy where the Attorney General’s own powers are at issue,
and the latter has no significance in view of the obvious political
implications of publicly opposing the Attorney General in an action
such as this once it has been commenced.
eee
17
The present decision is not simply erroneous, it is
totally incongruous in light of the marked enthusiasm
with which other panels of the Fifth Circuit have certified
questions of far less local importance in diversity actions,
despite Meredith v. Winter Haven (1943) 320 U.S. 228.13
The Court of Appeals’ effort to minimize the considera-
tions of comity which are self-apparent in this case is
clear evidence of its unacceptably restrictive attitude
toward the use of the certification procedure.
This Court has stated that the need to resolve “difficult
questions of state law bearing on policy problems of
substantial public import whose importance transcends
the result in the case then at bar” (Colorado River Water
Conservation District v. United States (1976) 96 S.Ct.
1236, 1244) will justify abstention. If the present question
does not meet this standard, it is difficult to imagine one
that does. This Court should grant the petition to make
clear that the presence of policy questions of vital local
importance strongly commends the use of the certification
procedure.
18E.g., Barnes v. Atlantic & Pacific Life Ins. Co. of Amer. (5
Cir. 1975) 514 F.2d 704; Hopkins v. Lockheed Awcraft Corpora-
tion (5 Cir. 1968) 394 F.2d 656; and Martinez v. Rodriquez (5
Cir. 1968) 394 F.2d 156.
CONCLUSION
For the reasons stated, the petition for a writ of
certiorari should be granted.
Respectfully submitted,
Pruissury, Mapison,
& SuTro
Of Counsel.
Smatuers & THoMPsoN
Of Counsel.
Rocers, Towers, Barry,
Jones & Gay
Of Counsel.
MiLBank, Tween, HapLey
& McCoy
Of Counsel.
Nose K. Grecory
C. Doveias FLoyp
225 Bush Street
Mailing Address P.O. Box 7880
San Francisco, CA 94120
Davi S. BatcHELLER
Alfred |. DuPont Building
Miami, FL 3313!
Attorneys for Petitioner,
Standard Oil Company
of California
Crecorm L. Barry
1300 Florida Title Building
Jacksonville, FL 32302
Rosert J. Ketty
P. O. Box 1872
Tallahassee, FL 32302
Writ FE. Jackson
One Chase Manhattan Plaza
New York, NY 10000
Attorneys for Petitioner,
Amerada Hess
Corporation
Jesse P. Luton
Joun E. Battey
P.O. Box 2100
Houston, TX 77027
Harry P. Davis, Jr.
P.O. Box 7245
Station C
Atlante, GA 30309
Attorneys for Petitioner,
Gulf Oil Corporation
19
TrenaM, Simmons, Kemxer,
Scuarr & Barkin
Of Counsel.
Braprorp, Wittiams, McKay,
Hamann &
JENNINGS
Of Counsel.
Suuuivan & Cromwe.i
Of Counsel.
Harry KemMKer
P.O. Box 1102
Tampa, FL 3360!
Wi J. Lowry
539 South Main Street
Findlay, OH
Attorneys for Petitioner,
Marathon Oil Company
Reernatp L. Wrui1aMs
9th Floor, Dade Federal Savings Building
101 East Flagler Street
Miami, FL 3313)
Lewis J. Orravian1
552 Frank Phillips Building
Bartlesville, OK 74004
Joxun Dickey
48 Wall Street
New York, NY 10005
Attorneys for Petitioner,
Phillips Petrolewm
Company
J. Kine RosenpaLe
The Standard Oil Company (Ohio)
Midland Building
Cleveland, OH 44115
Attorney for Petitioner,
Standard Oil Company
(Ohio)
(Appendix Follows)
APPENDIX
Appendix
United States Court of Appeals
Fifth Circuit.
No. 74-3309
State of Florida ex rel. Robert L. Shevin, |
Attorney General,
Plaintiff-A ppellant,
vs. :
Exxon Corporation et al.,
Defendants-A ppellees. :
[Jan. 22, 1976. ]
Appeal from the United States District Court
of the Northern District of Florida.
Before Turrie, THORNBERRY and
CoLeman, Circuit Judges.
THORNBERRY, Circuit Judge:
In July of 1973, the State of Florida through its Attor-
ney General commenced an ambitious and highly publicized
antitrust action against seventeen major oil companies! in
federal district court. Among the preliminary questions
raised by the defendants was the right of the Attorney
1The complaint, under §§ 1 and 2 of the Sherman Act, 15 U.S.C.
§§ 1, 2 (1970), and §§3 and 7 of the Clayton Act, 15 U.S.C.
§§ 14, 18 (1970), alleged a worldwide scheme of anticompetitive
activities in the production, transportation, refining, and market-
ing of petroleum and petroleum products. The Attorney General
seeks treble damages, divestiture, and injunctive and declaratory
relief.
A2
General, under Florida law,? to initiate this action with-
out explicit authorization from other departments, agen-
cies, and political subdivisions of the state. Prior to ruling
on the many other motions before it, the district court
sought to resolve this threshold issue by staying the action
in order for the Attorney General to obtain a declaratory
judgment in the Florida courts. The Attorney General,
deeming Florida law clear on the point, instead prosecuted
an abortive appea! to this Court, which we dismissed
without opinion for lack of a final order. The district court
has since removed this obstacle, dismissing the action as
one beyond the Attorney General’s authority.
This appeal followed, with the Attorney General vigor-
ously asserting his right to institute the lawsuit and the
defendants contesting it. The oil companies, however, do
not forcefully urge affirmance of the district court; they
argue instead that the issue is a delicate and difficult one
of state law which should be certified to the Florida Su-
preme Court for its definitive decision. We decline to do
so under the circumstances here presented and find the
Attorney General to be properly in federal court on behalf
of Florida. We therefore reverse.
2Although state law devermines this issue, it should be noted
that jurisdiction in the action is founded solely on 15 U.S.C. §§ 15,
26 (1970)—the federal antitrust laws—and that the diversity
jurisdiction of the federal courts has not been invoked.
3Although the suit is in the name of the state as a whole, it
seeks to recover damages allegedly suffered by the state as a con-
sumer, which have acerued directly to the constituent units of the
state—its “agencies, departments, and political subdivisions.”
A3
I.
The office of attorney general is older than the United
States and older than the State of Florida.‘ As chief legal
representative of the king, the common law attorney gen-
eral was clearly subject to the wishes of the crown, but,
even in those times, the office was also a repository of
power and discretion;> the volume and variety of legal
matters involving the crown and the public interest made
such limited independence a practical necessity. Transposi-
tion of the institution to this country, where governmental
initiative was diffused among the officers of the executive
branch and the many individuals comprising the legisla-
tive branch, could only broaden this area of the attorney
general’s discretion.
As a result, the attorneys-general of our states have
enjoyed a significant degree of autonomy.® Their duties
and powers typically are not exhaustively defined by either
constitution or statute but include all those exercised at
*Although the king appeared in court by his attorney even in
the earliest period of English legal history, it was not until the
sixteenth century that powers were consolidated in a single at-
torney who could be called “the chief representative of the crown
in the courts.” VI W. Holdsworth, A History of En«lish Law,
457-61 (2d ed. 1971).
5See VI W. Holdsworth, supra note 3, at 466-69, 470; XII
id. 305.
6This is particularly true where, as in Florida and most of our
states, the attorney general is an official independently elected by
the people. The significance of the attorney general’s status as an
official directly chosen by the people was reeognized by Justice
Ervin of the Florida Supreme Court in these terms:
The Attorney General is clected by the people; he is entrusted
by them with the common law power to legally represent them
or some of them in matters deemed by him to affect the public
interest. . . . Regardless of the effectiveness of his efforts in
particular public legal situations, at least the people have the
continuing satisfaction of knowing that their elected Attorney
A4
common law.? There is and has been no doubt that the
legislature nay deprive the attorney general of specific
powers; but in the absence of such legislative action, he
typically may exercise all such authority as the public
interest requires.’ And the attorney general has wide dis-
cretion in making the determination as to the public
interest.®
Thus it can be seen that the common law powers of the
attorney general appear, initially at least, broad enough
to support the action challenged in this case. But of course,
observations concerning the historic office of attorney gen-
eral or that office as it “typically” exists in the United
States cannot resolve the question before us. They can
only provide background for inquiry into the specific con-
General has the right to exercise his conscientious official dis-
cretion to enter into those legal matters deemed by him to
involve the public interest, even though not expressly au-
thorized by statute.
State ex rel. Shevin v. Yarborough, 257 So.2d 891, 895 (Fla.
1972) (Ervin, J., coneurring) (emphasis added).
7See, e. g., State of Illinois vy. Bristol-Myers Co., 152 U.S.App.
D.C. 367, 470 F.2d 1276 (1972); D’Amico v. Board of Medical
Examiners, 11 Cal.3d 1, 112 Cal.Rptr. 786, 520 P.2d 10 (1974) ;
State ex rel. Patterson v. Warren, 254 Miss. 293, 180 So.2d 293
(1965) ; State ex rel. Carmichael v. Jones, 252 Ala. 479, 41 So.2d
280 (1949) ; 7 Am.Jur.2d § 6, Attorney General ; 7 C.J.S. Attorney
General §5. See generally Shepperd, Common Law Powers and
Duties of the Attorney Gencral, 7 BaylorL.Rev. 1 (1955).
8See, e. g., D’Amico vy. Board of Medical Examiners, 11 Cal.3d
1, 112 Cal.Rptr. 786, 520 P.2d 10 (1974); Darling Apt. Co. v.
Springer, 25 Del. 420, 22 A.2d 397 (1941) ; State ex rel. Ervin v.
Collins, 85 So.2d 852 (Fla. 1956); 7 Am.Jur.2d §6, Attorney
General; 7 C.J.S. Attorney General § 5.
®See, e.g., Mobil Oil Corp. v. Kelley, 353 F.Supp. 582 (S.D.Ala.
1973), aff’d, 493 F.2d 784 (5 Cir. 1973), cert. dented, 419 U.S. 1022,
95 S.Ct.498, 42 L.Ed.2d 296 (1974); In re Intervention of the
Attorney General, 326 Mich. 213, 40 NW. 2d 124 (1949) ; Appeal
of Margiotti, 365 Pa. 330, 75 A. 2d 465 (1950) ; State ex rel. Davis
v. Love, 99 Fla. 333, 126 So. 374 (Fla. 1930); 7 Am.Jur.2d § 13,
Attorney General; 7 C.J.S. Attorney General § 5.
A5
stitutional and statutory provisions, and judicial decisions,
which define the office of Attorney General of Florida.
Only that inquiry will allow us to determine whether that
office fully fits the common law paradigm or differs in
significant respects.
Although the Attorney General of Florida is a constitu-
tional officer, the relevant Florida constitutional provisions
have never attempted to list specifically his powers. The
first Florida Constitution, written in 1838, provided for an
elected Attorney General who would attend sessions of
the legislature, draft all necessary “forms of proceeding”
for laws passed at the sessions, and “perform such other
duties, as may be prescribed by law.”’® In the present
constitution, adopted one hundred and thirty years later,
no greater specificity was attempted. In defining the cab-
inet, including the Attorney General who “shall be the
chief state legal officer,” the 1968 Florida Constitution
provides that:"
[iJn addition to the powers and duties specified here-
in, [the members of the cabinet] shall exercise such
powers and perform such duties as may be prescribed
by law.
This constitutional provision directs inquiry to the
provisions of applicable “law”. Does this refer only to
statutory provisions defining specific functions of the
Attorney General or does it include the broad and unenu-
merated powers of the office prescribed by the common
law?
10F'la.Const., art. V (1838).
\1Fla.Const., art. IV, § 4 (1968).
A6
We find that the common law powers still obtain for
several reasons. First, Florida has, since its pre-statehood
period, enacted the common law in force where not in con-
flict with statute.'* In addition, the statutory provision
which does enumerate the Florida Attorney General’s
powers makes no pretense at being comprehensive; it pro-
vides in part that:'*
the attorney general shall . . . have and perform all
powers and duties incident or usual to such office... .
Finally, and most importantly, the Florida Supreme
Court has consistently recognized the continuing existence
of the Attorney General’s common law powers. The first
12Fla.Stat.Ann. § 2.01 (1961) (derived from Act, Nov. 6, 1829,
§ 1). See generally State ex rel. McKittrick v. Missouri Pub. Serv.
Comm., 175 S.W.2d 857, 861 (Mo. 1943).
13Fla.Stat.Ann. § 16.01 (1961) provides in full:
The attorney general shall reside at the seat of government,
and shall keep his office in a room in the capitol; he shall
perform the duties prescribed by the constitution of this state,
and also perform such other duties appropriate to his office, as
may from time to time be required of him by law, or by
resolution of the legislature; he shall, on the written requisition
of the governor, secretary of state, treasurer, or comptroller,
give his official opinion and legal advice in writing on any
matter touching their official duties; he shall appear in and
attend to in behalf of the state, all suits or prosecutions, civil
or criminal, or in equity, in which the state may be a party,
or in anywise interested, in the supreme court and district
courts of appeal of this state; he shall appear in and attend
to such suits or prosecutions in any other of the courts of this
state, or in any courts of any other state, or of the United
States; he shall have and perform all powers and duties
incident or usual to such office, and he shall make and keep
in his office a record of all his official acts and proceedings,
containing copies of all his official opinions, reports and cor-
respondence, and also keep and preserve in his office all
official letters and communications to him, and cause a registry
and index thereof to be made and kept, all of which official
papers and records shall be subject to the inspection of the
governor of the state, and to the disposition of the legislature
by act or resolution thereof.
\/
AZ
clear decision on the issue was the 1869 case of Siate ex
rel. Attorney General v. Gleason, in which the Court
held :"4
The Attorney-General is the attorney and legal guard-
ian of the people, or of the crown, according to the
form of government. His duties pertain to the Execu-
tive Department of the State, and it is his duty to
use means most effectual to the enforcement of the
laws, and the protection of the people, whenever
directed by the proper authority, or when occasion
arises. . . . Our Legislature has not seen fit to make
any chai.,2 in the common law rule. The office of the
Attorney-General is a public trust. It is a legal pre-
sumption that he will do his duty, that he will act
with strict impartiality. In this confidence he has been
endowed with a large discretion, not only in cases
like this, but in other matters of publie concern. The
exercise of such discretion is in its nature a judicial
act, from which there is no appeal, and over which
the courts have no control.
This affirmation of the existence of the Attorney General’s
common law powers does not stand alone in Florida juris-
prudence. It is echoed in case after case from Gleason to
the 1972 decision in State ex rel. Shevin v. Yarborough,
257 So.2d 891 (Fla. 1972).1° See State ex rel. Ervin v.
Collins, 85 So.2d 852 (Fla. 1956); State ex rel. Landis vy.
Kress, 115 Fla. 189, 155 So. 823 (1934) ; State ex rel. Davis
v. Love, 126 So. 374 (Fla. 1930); State ex rel. Moodie v.
1412 Fla. 90, 112 (Fla. 1869), quoted in State ex rel. Davis v.
Love, 99 Fla. 333, 126 So. 374 (1930) (emphasis added).
15Although there is room in Yarborough for a difference of
opinion as to the extent of the common law powers, the Court
clearly recognized their existence: “The Attorney General in-
herited many powers and duties from the King’s Counsellor at
Common Law... .” 257 So.2d at 893.
AS
Bryan, 50 Fla. 293, 39 So. 929 (1905). We conclude that
there simply is no question that such powers exist.
IT.
But even this conclusion does not decide the case before
us. Although the Florida Attorney General has common
law powers, such powers might not extend to the specific
power asserted: the institution of an action under federal
law, to recover damages sustained by departments, agen-
cies, and political subdivisions which have not affirmatively
authorized suit. And even if the specific common law power
asserted exists as a general matter, it might be that Flori-
da’s constitutional or Statutory law conflicts with the
common law on that point and thus overrules it.
As noted earlier, Florida statutory law expressly author-
izes the Attorney General to “appear in and attend to”
actions in which the State is a party. See note 13, supra.
Although it might be argued that this statutory power
includes the power to initiate suit as well, there is no
doubt that the common law power of the Attorney General
extends this far. The Florida Supreme Court in State ex
rel. Landis v. Kress'® defined this power to initiate actions
in terms clearly sufficient to cover the case before us:
The Attorney General has the power and it is his
duty among the many devolving upon him by the com-
"6115 Fla. 189, 155 So. 823, 827 (1934). We must reject any
argument by defendants that the right to “prosecute” an action
does not include the right to institute the action. That term
typically is used to refer, as a unit, to the institution and main-
tenance to a conclusion of a legal proceeding. See Black’s Law
Dictionary 1385 (4th ed. 1968); Stewart v. Svetley, 46 Ala.App.
601, 246 So.2d 670, 672 (1971); People v. Zara, 44 Mise.2d 698,
255 N.Y.S.2d 43, 46-47 (1964): Thelin v. Intermountain Lumber
€& Builders Supply, 80 Ney. 285, 392 P.2d 626 (1964) ; Sigmon vy.
State, 200 Va. 258, 105 S.E.2d 171, 178 (1958) ; Ex parte Kelly,
cence
AQ
mon law to prosecute all actions necessary for the
protection and defense of the property and the rev-
enue of the state ....
This understanding was reiterated by Justice Ervin. a
former Florida Attorney General, who stated that :!7
it is the inescapable historic duty of the Attorney
General, as the chief state legal officer, to institute,
defend or intervene in any litigation or quasijudicial
administrative proceeding which he determines in his
sound official discretion involves a legal matter of
compelling public interest.
And, contrary to defendants’ contention, the Attorney
General’s power to institute litigation on his own initiative
is not limited to quo warranto proceedings in Florida'®
45 Okl. 577, 146 P. 444, 445 (1915) ; State ex rel. Stubbs v. Daw-
son, 86 Kan. 180, 119 P. 360, 364 (1911).
That the Florida Supreme Court in Kress did not adopt the
restrictive definition contended for by defendants is evidenced
by the fact that its description of the quo warranto power also
did not specifically mention the right to institute an action; it was
power “to determine the right of any one who claims or usurps
any office... .” Yet the Court said of this power of the Attorney
General, that, where cause to institute an action exists, “the power
and authority exists in him to present it without leave asked of
any one. In that respect he represents the sovereignty whose at-
torney he is.” 155 So. at 827. Similarly, the Court broadly stated
that it is the Attorney General’s duty “to exercise all such power
and authority as public interests may require from time to time.”
Id. (emphasis added). Such language seems inconsistent with the
very narrow meaning of “prosecute” which defendants argue was
intended.
‘7State ex rel. Shevin v. Yarborough, supra, 257 So.2d at 894
(Ervin, J., concurring).
'SFor example, in State ex rel. Davis vy. Love, 126 So. 374 (Fla.
1930), the Court upheld the Attorney General’s right to file a writ
of prohibition against a cireuit court judge. And, although not
involving original institution of actions in a trial court, State ex
rel. Ervin v. Collins, supra, (appeal); State ex rel. Shevin vy. Ker-
win, 279 So.2d 836 (F'la. 1973) (appeal), and State ex rel. Shevin
v. Yarborough, supra, (intervention) present examples of the
Attorney General’s involvement of the state in other types of
litigation on his own initiative.
A10
or elsewhere;'® it is as broad as the “protection and de-
fense of the property and revenue of the state,” and,
indeed, the public interest requires.2¢
As to whether such authority is limited to actions under
state law,?' we again start with the Florida Supreme
Court’s Kress decision: “The Attorney General has the
power ... to prosecute al/ actions necessary for the pro-
1°The black letter in 7 C.J.S. Attorney General § 8a is:
The attorney general, as the chief legal representative of the
state, may institute all legal proceedings necessary to protect
the interests of the state... .
Accord, 7 Am.Jur.2d § 11, Attorney General. See, e.g., State ex rel.
Carmichael v. Jones, 252 Ala. 479, 41 So.2d 280 (1949) ; Morley v.
Berg, 216 Ark. 562, 226 S.W.2d 559 (1950) ; D’Amico v. Board of
Medical Examiners, 11 Cal.3d 1, 112 Cal.Rptr. 786, 520 P.2d 10
(1974); Gandy v. Keserve Life Ins. Co., 279 So.2d 648 (Miss.
1973) ; Bonniwell y. Flanders, 62 N.W.2d 25 (N.D. 1953); Agey
v. American Liberty Pipe Inne Co., 141 Tex. 379, 172 S.W.2d 972
(1943).
20This was made clear in Kress by the Florida Supreme Court’s
inelusion of the quo warranto power of the attorney general in
the list of the powers of the office quoted in text:
The Attorney General has the power . . . by writ of quo
warranto to determine the right of any one who claims or
usurps any office, and to vaeate the charter or annul the
existence of a corporation for violation of its charter or for
omitting to exercise its corporate powers; to enforce trusts and
prevent publie nuisances and the abuse of trust powers. As
the chief law officer of the state, it is his duty in the absence
of express legislative restrictions to the contrary, to exercise
all such power and authority as public interest may require
from time to time.
155 So. at 827. The conclusion that only quo warranto proceedings
are within the attorney general’s power to initiate is negated both
by the inelusion of that type of proceeding in the list without ap-
parent distinction and by the sweeping power acknowledged in the
last sentence of the quoted passage.
21We note that the United States District Court for the Southern
District of Florida has held that, “under Florida law, the At-
torney General has the authority to institute suit to enforee rights
created under the laws of Florida in the Federal Court in Diversity
suits, but not to enforce rights created under the laws of the United
States.” Point East One Condominium Corp. vy. Point East De-
velopers, Inc. (No. 73-1815—Civ.-CA, Oct. 17, 1974).
ee
All
tection and defenses of the property and revenue of the
state” (emphasis added). We note also that such a limita-
tion would result in a significant impairment of the state’s
ability to expeditiously assert important rights under the
antitrust laws, bankruptcy laws, and other federal legisla-
tion; if authorization must be forthcoming from the
legislature or from a myriad of state agencies, it will in
some cases come too late to be worthwhile. Moreover, study
of applicable Florida statutes reveals no basis for such a
restriction. To the contrary the Attorney General is au-
thorized to “appear in and attend to” litigation in state
and federal courts alike. § 16.01, Fla.Stat.Ann. (1961).
Finally, we note that actions by attorneys general on be-
half of states under the federal antitrust laws are by no
means a novel phenomenon. See, ¢.g., Hawaii v. Standard
Oil of California, 405 U.S. 251, 92 S.Ct. 885, 31 L.Ed.2d
184 (1972); In re Multidistrict Move. Vehicle Air Pollw-
tion Control Equipment, 481 F.2d 122 (9 Cir.), cert. denied
sub nom., Morgan v. Automobile Mfr’s Assn., 414 U.S.
1045, 94 S.Ct. 551, 38 L.Ed.2d 336 (1973); State of Illinois
v. Bristol-Myers Co., 152 U.S.App.D.C. 367, 470 F.2d 1276
(1972); State of West Virginia v. Chas. Pfizer & Co., 440
F.2d 1079 (2 Cir.), cert. denied sub nom., Cotler Drugs,
Inc. v. Chas. Pfizer & Co., 404 U.S. 871, 92 S.Ct. 81, 30
L.Ed.2d 115 (1971); State of Illinois v. Associated Milk
Producers, Inc., 351 F.Supp. 4386 (N.D.II. 1972); State ex
rel. Derryberry v. Kerr-McGee Corp., 516 P.2d 813 (OKL.
1973). See also Gardner v. State of New Jersey, 329 US.
565, 67 S.Ct. 467, 91 L.Ed. 504 (1947) (attorney general’s
response to objections in railroad reorganization proceed-
ing under Bankruptey Act was authorized by state law) ;
Commonwealth of Kentucky ex rel. Hanceck v. Ruckels-
A12
haus 362 F.Supp. 360 (W.D.Ky. 1973) (action by attorney
general under Clean Air Act of 1970). For all these rea-
sons, we find no basis for holding that the Attorney
General may not act to enforce a state’s rights under
federal as well as state law.
Finally, it could be argued that, although the common
law power of the attorney general to initiate actions under
federal law exists, there is no power to initiate an action
without affirmative authorization from state instrumentali-
ties where, as here, the action secks to recover damages
allegedly accruing to those instrumentalities.22 Pertinent
to this point are the Florida Supreme Court decisions in
Holland v. Watson, 153 Fla. 178, 14 So.2d 200 (1943), and
Watson vy. Caldwell, 158 Fla. 1, 27 So.2d 524 (1946). In
those cases, the Court held that the statutorily-created
Board of Administration and Trustees of the Internal
Improvement Fund were not required to allow the Attor-
ney General to represent them in legal matters, but could
employ special counsel of their own choosing.
We find that Holland and Watson do not cast doubt on
the Attorney General's power in this case for several
reasons, First, those cases were not ones in which the
Attorney General’s litigation power was at issue. In both
cases, the Florida Supreme Court categorized the Attor-
ney General’s duties under three headings:
22Such an argument would draw a distinction between actions
by the state to vindicate its interests as a unified government
entity—for example, proceedings to abate a nuisance or in the
nature of quo warranto—and those by the state as a consumer, in
which the state may be seen as a collective of the various depart-
ments, agencies, and subdivisions which are the actual consumers.
0 ae ans od one
eo = eae ene
Al3
(1) Swueh duties as the Constitution and the Legis-
lature lay on him, (2) His duties as legal advisor to
the officers of the Executive Department, and (3) His
duty as to litigation in which the State is a party or
is otherwise interested. 14 So.2d at 202; 27 So.2d at
528.
The Court then treated the question before it as falling
under (2)—whether the phrase “officers of the Executive
Department” extended to the governmental bodies in ques-
tion. The scope of the Attorney General’s litigation power,
under (3) above, was not discussed at all.
Second, the cases in question dealt with a situation in
which there was a conflict between the wishes of the Attor-
ney General and the government body as to the body’s
legal representation. The body had secured legal counsel
on its own and the Attorney General sued to enjoin that
action. By contrast, there is no evidence in the record
before us of any objection on the part of the government
bedies which allegedly have been injured by the defend-
ants’ business practices. And, as a practical matter, it is
difficult to imagine such objections. The individual govern-
ment instrumentalities involved have something to gain
from this suit, and nothing to lose but their causes of
action (by way of res judicata or collateral estoppel) ;
and in view of the novelty and difficulty of this suit, it
seems most unlikely that those government entities would
prefer to prosecute their causes of action individually.
Finally, and most importantly, Holland and Watson can
be read, at the very most, to negate the Attorney General’s
independent litigation powers only with respect to those
governmental entities which are not part of the “Executive
Al4
Department” of Florida. Thus, even if this extreme and,
we believe, incorrect reading of those decisions were
adopted, the Attorney General’s powers with respect to
the basie Executive Depariment would remain unques-
tioned. At this stage of the case, the sole question for
decision is whether the Attorney General of Florida is
properly in federal court prosecuting this action; it is, in
essence, a question of standing. We find that, at least as
to the Attorney General’s right to represent the state on
behalf of the basic Executive Departments, there can be
no significant doubt.**
For all of these reasons, we believe that the Holland
and Watson cases do not negate the Attorney General’s
authority to bring the instant action.2* Neither do we
believe that the Attorney General's authority is seriously
cast in doubt by the Florida statutes cited by defendants.
The fact that various statutes delegate specifie portions
*3Therefore we leave any subsidiary questions as to the repre-
sentation of the state on behalf of other governmental entities to
the stage of this action (and we make no assumption that it will
be reached) at which those questions will become relevant: the
calculation of damages. In doing so, we are in no way evading an
issue properly before us; the question of standing is resolved. And
our action is not contrary to the policy against piecemeal litigation.
There is a possibility that this litigation, by settlement or other-
wise, will not reach the damages stage. And in any event we
believe that the computation of damages is likely to be a minor
part of the lawsuit as compared to the establishment of a sub-
stantive cause of action.
24In reaching our conclusion on this point, we see no need for
heavy reliance on the decision in State ex rel. Shevin v. Yarborough,
257 So.2d 891 (Fla. 1972). The Florida Supreme Court stated
in its opinion that “[w]e, therefore, conclude that the Attorney
General does have status to represent the State as a consumer”,
apparently without authorization of the subordinate entities who
are the direct consumers. But defendants are correct in noting
that the Attorney General’s status in that regard was not at issue
in the case.
ee ee ee eee ft eee eee
ee a ee
Ald
of Florida’s litigation power to state’s attorneys*® in no
way indicates an abrogation of the Attorney General’s
common law powers as to other types of litigation; those
powers still obtain in the absence of express legislative
provision to the contrary. Sce, e.g., State ex rel. Patter-
son v. Warren, 254 Miss. 293, 180 So.2d 293, 299-300
(1965); 7 Am.Jur.2d § 10, Attorney General; 7 C.J.S.
Attorney General § 5. And the Florida Uegislature’s au-
thorization of suit by the Attorney General under the
Florida Deceptive and Unfair Trade Practices Act, Fla.
Stat.Ann. § 501.201 et seq. (1974 Supp.), does not negate
his powers with relation to the federal antitrust laws.
That statute assigns part of its enforcement power to the
state’s attorneys, thus necessitating specific delineation
of the respective responsibilities of the state’s attorneys
and Attorney General. The specific authorization therefore
had an independent purpose and permits no negative
implication as to the federal acts; in any event, the stat-
utory grant of a power possessed by the attorney general
at common law normally does not deprive him of other
common law powers. See State ex rel. Carmichael v. Jones,
252 Ala. 479, 41 So.2d 280, 284 (Ala. 1949); 7 C.J.S.
Attorney General § 5. Finally, defendants cite the 1969
creation of a Department of Legal Affairs, headed by the
Attorney General, to serve as counsel where requested by
state governmental bodies, which have independent rights
to sue on their own behalf. Fla.Stat.Ann. § 20.11 (1974
Supp.). But that statute merely transfers the Attorney
258. g., Fla.Stat.Ann. § 27.02 (1961) (original criminal pro-
aan Fla.Stat.Ann. §§ 17.20, 27.10 (1961) (collection of state
claims; FlaStat.Ann. §§ 544.03, 544.06 (1961) (criminal and
injunetive action against combinations tending to obstruct sale
of beef).
Al6
General’s powers, including all those “prescribed by law,”
and provides that each board “of which the attorney gen-
eral is a member” may retain other counsel. Thus, to the
extent the statute is at all relevant, it casts no more
doubt on the Attorney General’s powers than Holland and
Watson. Like those cases, the statute deals with a board’s
rights to obtain other counsel if it so chooses and, like
those cases, the statute applies to only a few of the entities
upon whom the Attorney General's standing in this case
may be based.
IIT.
Thus we conclude that (1) the Attorney General of
Florida retains common law powers, (2) that those powers
extend to institution of suits under federal law without
specific authorization of the individual government enti-
ties who allegedly have sustained the legal injuries
asserted, and (3) that neither the decisional nor statutory
law of Florida negates such authority.
We reach this conclusion, after extensive study and able
briefing by all parties, with considerable confidence. In
our view, this simply is not an extremely close question.
But whatever our confidence, only the Florida Supreme
Court can decide this state law question in a manner that
is, by definition, -orrect. Thus the defendants’ strong urg-
ing that the issue be certified to that Court?* has consid-
26Under Florida Jaw, the United States Supreme Court or any
United States Court of Appeals may certify questions of state
law to the Florida Supreme Court where such questions “are
determinative of the said cause, and there are no clear controlling
precedents in the decisions of the supreme court of this state.”
Fla.Stat.Ann. § 25.031 (1961). The question is then briefed to the
Florida Supreme Court and oral argument may be allowed. Rule
4.61, Fla.R.App.Proe.
eo ee en ee ee ee a Bete me. tree
Al7
erable foree. Both the United States Supreme Court?’
and this Court** have lauded the certification process, not
only because it produces definitive answers but also be-
cause it “helps build a cooperative judicial federalism”.
Lehman Bros. v. Schein, 416 U.S. 386, 391, 94 S.Ct. 1741,
1744, 40 L.Ed.2d 215 (1974). However, as has been noted
by Chief Judge Brown, one of the strongest advocates of
the process, certification should never be automatic or un-
thinking. “We use much judgment, restraint and discretion
in certifying. We do not abdicate.” Barnes v. Atlantic &
P. Life Ins. Co., 514 F.2d 704, 705 n. 4 (5 Cir. 1975).
In determining whether to exercise our discretion in
favor of certification, we consider many factors. The most
important are the closeness of the question and the exis-
tence of sufficient sources of state law—statutes, judicial
decisions, attorney general’s opinions—to allow a prin-
cipled rather than conjectural conclusion. But also to be
considered is the degree to which considerations of comity
are relevant in light of the particular issue and case to
be decided.2® And we must also take into account practical
limitations of the certification process: significant delay
and possible inability to frame the issue so as to produce
a helpful response on the part of the state court.*°
27 Lehman Bros. v. Schein, 416 U.S. 386, 94 S.Ct. 1741, 40 L.Ed.2d
915 (1974).
28. g., Coastal Petroleum v. Secretary of Army, 489 F.2d 777
(5 Cir. 1973); Hopkins v. Lockheed Aircraft Corp. 394 F.2d 656
(5 Cir. 1968).
20Qne aspect of this is the likelihood of the recurrence of the
particular legal issue. See Barnes v. Atlantic & P. Life Ins. Co.,
514 F.2d 704, 706 (5 Cir. 1975).
30See C. Wright, Law of Federal Courts 203-05 (2d ed. 1970).
A18
As we have noted earlier, the narrow issue of the Flor-
ida Attorney General’s standing to bring this action does
not seem to us an extremely close one. And we come to
this conclusion with the aid of a long line of Florida
decisions—from Gleason to Kress to Yarborough—as well
as the body of common law dealing with the powers of
attorneys general. This clearly is not a case in which we
are required to “guess” state law from one or two ques-
tionable precedents.
Defendants urge that the issue before us is one which
concerns “the fundamental political structure of the State
of Florida” and thus involves a “sensitive area of state
law.” Although we might respond that the absence of
intervention by other state instrumentalities casts doubt
upon the degree to which this case involves actual internal
state conflict, we recognize that this point has some
validity. Comity considerations are more applicable in
this case than in one involving, for example, the interpre-
tation of a clause in an insurance contract. However, it is
not entirely clear which way the policy in favor of respect
for state governmental processes cuts in this case. We
have before us the Attorney General, elected by the people
of Florida, whose opinions on questions involving the du-
ties of various state officials are persuasive, though cer-
tainly not binding, in Florida courts. Fla. Stat.Ann. § 16.01
(1961); see Beverly v. Division of Beverage of Dept. of
Bus. Regulation, 282 So.d 657 (Fla.D.Ct.App. 1973).
He has brought this action in what he has determined
to be the public interest and has proceeded for two years
without apparent opposition from the Florida Legislature
or the state governmental entities he purports to repre-
Al9
sent. To impede the progress of this action through the
certification process itself seems to us to involve some
disregard of the state governmental processes that comity
principles require us to respect.
Moreover, we note that, unlike most certification cases,
this is not an Erie diversity case in which the federal
courts merely provide an impartial forum. It is a pure
federal question case in which state law happens to be
relevant in determining the issue of standing. Addition-
ally, this is not a suit which could ever have been brought
in state court, since the federal courts have exclusive
jurisdiction over Sherman and Clayton Act cases. 15
U.S.C. §§ 15, 26 (1970). The fact that this is primarily
a federal case, and one which has not been “lured” into
federal court by means of the diversity jurisdiction,
renders considerations of federal-state comity somewhat
less persuasive still.
Finally, we must consider an inevitable side effect of
certification—delay. The experience in our Cireuit has
been that the process requires a period approaching one
year at the least—sometimes much more. See, e.g., Allen
v. Estate of Carman, 446 F.2d 1276 (5 Cir. 1971), on
receipt of answers to certification, 486 F.2d 490 (5 Cir.
1973) (28 months); Hopkins v. Lockheed Aircraft Corp.
358 F.2d 347 (5 Cir. 1966), on receipt of answers to cer-
tification, 394 F.2d 656 (5 Cir. 1968) (26 months). We
consider the prospect of such delay particularly significant
in the context of this ease. Over two and one-half years
already have passed since the filing of this complaint and
many preliminary questions are yet to be resolved. The
discovery which must take place to establish the alleged
A20
violations, if there be any, can only be massive and ex-
tremely time-consuming. As a result, we believe that delay
that is not absolutely necessary should be avoided. It is
quite possible that the charges against the defendants are
wholly ill-founded; but if they deserve to prevail, defend-
ants should do so on the merits rather than through the
passage of time.
For all these reasons we decline to certify the state law
question in this case to the Florida Supreme Court. In
taking this action, we intend to cast no doubt on the
general efficacy of the certification process. And we cer-
tainly recognize the supremacy of the Florida Supreme
Court as interpreter of state law, as well as the possibility,
though we believe it to be small, that our decision today
is an erroneous one.
Absolute certainty in judicial decisions, as in other
areas of human action, is a rare and expensive commodity.
In certification cases, unlike most which come before us,
it is available to us, since the Florida Supreme Court’s
word is final. But in this case, with the law on this issue
fairly clear, we find the price of certainty too high, in
terms of delay which may prejudice the plaintiffs’ rights
to a speedy resolution of the merits.
Therefore the judgment is reversed.
CoLteman, Circuit Judge (dissenting) :
I respectfully dissent. I would certify this question to
the Supreme Court of Florida. Under my concept of
federalism, that Tribunal should be the one to delineate
A21
the authority, power, and duties of its Attorney General
in those situations where that authority has been drawn
into question, especially where, as here, the authority is
not express and, at the best, can only be supplied by
implication.
Even though a state Attorney General is exercising
common law authority as the chief law officer of the realm,
he does not exercise that authority as an unlimited mon-
arch, governed only by his own judgment. He necessarily
remains, and can act only, as the duly authorized agent
(servant) of the State from whence he derives his author-
ity, as formerly from the King.
“The power and duties of the English attorney gen-
eral, though frequently referred to as common-law
powers and duties, were not in fact such. He was the
King’s legal adviser and represented him in_ the
courts, and was when the common law came to t!s
country appointed not under any common-law rule
but by letters-patent of the King, which set forth
what his powers and duties should be, including the
courts in which he could appear as the King’s repre-
sentative, and he was at all times subject to the King’s
supervision and control. 6 Holdsworth’s History of
the Common Law, 458 et seq. It is true that the com-
mon law recognized his right to represent the King in
the courts to the extent authorized by his lettei.
patent, but did not confer or broaden this right.”
As the majority opinion points out, the 1968 Florida
Constitution directs that the Attorney Generai “shall ex-
ercise such powers and perform such duties as may be
iChief Justice Smith, dissenting in Kennington-Saenger Theaters
v. State, 196 Miss. 841, 18 So.2d 483, 153 A.L.R. 883 (1944).
A22
prescribed by law” (emphasis mine). There is much room
for doubt that by implication the Attorney General has
authority “prescribed by law” to bring this particular
suit, freighted as it is with much expense and potentially
heavy court costs.
In an event, first and last, this is solely a question of
Florida law, dealing with one of its officials who purports
to act on its behalf. While we have jurisdiction to decide
it incidentally to the pending suit, I would give the Flor-
ida courts a chance to resolve it in a final, binding manner,
especially since we need not invoke the doctrine of absten-
tion but may resort to a specific procedure, frequently
invoked in questions of less far reaching consequences.
ily tt oleae aban nsaee
A23
(Letterhead of
United States Court of Appeals
Fifth Cireuit
Office of the Clerk)
March 10, 1976
To All Counsel of Record
No. 74-3309—State of Florida ex rel. Robert L. Shevin,
Attorney General v. Exxon Corporation, et al.
Dear Counsel:
This is to advise that an order has this day been entered
denying the petition( ) for rehearing, and no member of
the panel nor Judge in regular active service on the
Court having requested that the Court be polled on re-
hearing en bane (Rule 35, Federal Rules of Appellate
Procedure: Local Fifth Circuit Rule 12) the petition( )
for rehearing en bane has also been denied.
See Rule 41, Federal Rules of Appellate Procedure for
issuance and stay of the mandate.
Very truly yours,
Edward W. Wadsworth, Clerk
by /s/ Susan M. Gravios
Deputy Clerk
/smg
ee: all counsel of record
A24
United States Court of Appeals
for the Fifth Circuit
October Term, 1975
No. 74-3309
D. C. Docket No. CA 73-112-T
State of Florida, ex rel. Robert L. Shevin, |
Attorney General,
Plaintiff-Appellant,
versus
Exxon Corporation, et al.,
Defendants-Appellees. ;
Appeal from the United States District Court
for the Northern District of Florida
Before: Turrie, THornBerRy and CoLEMaAN,
Cireuit Judges.
JUDGMENT
This cause came on to be heard on the transcript of
the record from the United States District Court for the
Northern District of Florida, and was argued by counsel;
On Consideration Whereof, It is now here ordered and
adjudged by this Court that the judgment of the said
District Court in this cause be, and the same is hereby,
reversed ;
It is further ordered that defendants-appellees pay to
plaintiff-appellant, the costs on appeal to be taxed by the
Clerk of this Court.
January 22, 1976
CoL_emMAN, Cireuit Judge, dissenting.
Issued as Mandate: Apr. 20, 1976
At ot
~ -eceeee ast
A25
In the United States District Court
Northern District of Florida
Tallahassee Division
Civil Action No. 73-112-Civ-T
The State of Florida )
ex rel Robert L. Shevin,
Attorney General,
Plaintiff,
Vs. 4
Exxon Corporation, a New Jersey
corporation, et al.,
Defendants. j
ORDER OF DISMISSAL
This cause came on before me on November 29, 1973
upon all motions then pending and this Court entered its
interlocutory order dated November 30, 1973 on the mo-
tion of the defendants to dismiss the cause for the lack of
the authority of the Attorney General of Florida to insti-
tute, on his own initiative and in his own right, a suit
in the name of the State of Florida and its entities or
on behalf of the agencies, departments and political sub-
divisions of the State of Florida seeking relief under the
antitrust laws of the United States.
The appeal taken by the Attorney General of Florida
having been dismissed by the United States Court of
Appeals for the Fifth Cireuit as not taken from an
appealable order and the Attorney General having re-
portec to this Court at the hearing held on July 10, 1974
that he does not intend to seek other appropriate relief
as permitted by the order of the United States Court of
Appeals for the Fifth Circuit dismissing said appeai and
A26
as suggested by this Court in its order of November 30,
1973, this Court is of the opinion that a final order dis-
missing this cause should be entered forthwith.
The Court having taken under advisement the motions
filed on behalf of the defendants which were argued be-
fore the Court at the hearing on November 29, 1973 and
the Court having considered the pleadings, briefs and
arguments of counsel and there being nothing in the
record to show any action by the legislature or even the
Cabinet of the State of Florida, or any agency, depart-
ment or political subdivision of the State of Florida,
authorizing the institution of this suit by the Attorney
General of Florida in the name of the State of Florida
and its subdivisions, the Court is of the opinion and finds
that the Attorney General of Florida lacks the authority
under the Constitution or laws of Florida to institute,
on his own initiative and in his own right, a suit in the
name of the State of Florida and its entities or on behalf
of the agencies, departments and political subdivisions of
the State of Florida seeking relief under the antitrust
laws of the United States. It is therefore, upon consid-
eration
Ordered and Adjudged that the motions of the defend-
ants to dismiss this cause for the lack of the authority
of the Attorney General to institute this suit as above
set forth be and the same are hereby granted and the
cause is dismissed, with prejudice.
Done, Ordered and Adjudged at Tallahassee, Florida
this 22nd day of July, 1974.
/s/
United States District Judge
—_
Es ele = eam Reh ete RD ed marke Saale meee a sae betwee
A27
In the United States District Court for the
Northern, District of Florida
Tallahassee Division
73. .12-Civ-T
Attorney General,
The State of Florida !
ex rel. Robert L. Shevin,
Plaintiff,
Vs. P
Exxon Corporation, a New
Jersey corporation, et al.,
Defendants.
;
ORDER
This cause is before the court for hearing on numerous
motions filed on behalf of defendant o1l companies includ-
ing motions to dismiss for lack of the authority in the
Attorney General of Florida to bring such an action,
motions to dismiss claims brought in the Attorney Gen-
eral’s capacity as parens patriae, motions to dismiss cer-
tain claims brought pursuant to Sections 3 and 7 of the
Clayton Act, various motions to strike and for more
definite statement, and select motions attacking the juris-
diction of this court as to several of the defendants. All
parties were represented by counsel and argument was
received by the Court as to all motions in which oral
argument was requested.
In this action the Attorney General of Florida seeks to
represent, on the instance of the authority in that office,
(1) the State of Florida, its agencies, departments, and
political subdivisions, (2) the State of Florida in its
capacity as parens patriae trustee, guardian and repre-
A28
sentative of the people of the State of Florida, and (3)
the State of Florida as representative of a class of all
public entities of the State including counties, municipali-
ties, school boards, special taxing districts, and their
several departments, agencies, and divisions, as consum-
ers of the goods and services alleged to be the subject
of the defendants’ anti-competitive activities.
The claim generally is that these defendants, the major
oil companies of the United States, have collectively con-
spired to violate the antitrust laws of the United States
resulting in injury to the State of Florida and to its
peoples as consumers of defendants’ goods and services.
In this litigation a threshold issue has been raised
which this Court thinks ought to be resolved at the out-
set. The question is the authority of the Altorney Gen-
eral of Florida to bring this action in the various capaci-
ties alleged. Since the magnitude of this action is so great
and the pre-trial discovery and preparation could reason-
ably extend over a significant period of time, this Court
thinks it would be disastrous not only to the parties but
to the Court in view of the allocation of the judicial time
and facilities, to conclude this litigation with this very
serious question unresolved.
The Attorney General argues that this authority to
represent all the parties plaintiff in this action is un-
questioned under Florida law. This Court finds the econ-
trary to be true and would observe here that throughout
the history of Florida, as is indicated by court decisions
and the various constitutions adopted by Florida, that
there is great doubt as to the outer perimeter of the
authority of the Attorney General who is a member of
the state cabinet. The present constitution of Florida,
A29
the statutory laws and decisions of the highest court of
this state offer little assistance to this Court in deter-
mining the authority of the Office of the Attorney General
of Florida to institute suits against persons allegedly
violating the laws of the United States.
The present Constitution of the State of Florida,
adopted in 1968, contains the following provisions relat-
ing to power of the Attorney General:
Article TV, Section 4:
“(a) There shall be a cabinet composed of a secre-
tary of state, an attorney general, a comptrol-
ler, a treasurer, a commissioner of agriculture
and a commissioner of education. In addition
to the powers duties specified herein, they
shail exercise such powers and perform such
duties as may be prescribed by law.
(c) The attorney general shall be the chief state
legal officer.” (emphasis supplied)
There is no provision in the Florida Constitution which
generally empowers the Attorney General to institute
suit in the name of the state or specifically empowers him
to institute suit to seek relief for violations of federal
law. Rather the Constitution of Florida in Article II,
Section 3, raises doubt as to the authority of the Attor-
ney General to represent, as he purports to do in this
suit, all divisions and departments in the three separate
branches of government in any action without explicit
authority to do so.
Article II, Section 3:
“The powers of the state government shall he divided
into legislative, executive, and judicial branches. No
person belonging to one branch shall exercise any
A30
powers appertaining to either of the other branches
unless expressly provided herein.”
Likewise the decisions of the Florida Supreme Court
suggest the problem involved in this multicapacity repre-
sentation sought by the Attorney General. In Holland v.
Watson, 14 So.2d 200 (Fla. 1943) the Attorney General
filed a bill of complaint in the cireuit court seeking to
restrain the State Board of Administration from retain-
ing counsel other than the Attorney General. He alleged
that under the common law, the statutes, and the Con-
stitution of Florida, it was the exclusive prerogative of
the Attorney General to represent the Board. The Florida
Supreme Court disagreed with the Attorney General and
did so having before it for consideration its own decision
in State ex rel Landis v. Kress, 115 So. 823, (1934),
wherein it defined the common law duties of the Attorney
General. The Holland court, finding no intent on the part
of the legislature to extend the duties of the Attorney
General to that of representing the Board, decided that
the State Board of Administration could employ other
counsel to represent it. The Florida Court addressed the
same question in Watson v. Caldwell, 27 So.2d 524 (Fla.
1946) and reached essentially the same conclusion.
Recently in Shevin v. Yarborough, 257 So.2d 891 (Fla.
1972), the Supreme Court of Florida was faced with the
question of the authority of the Attorney General to
intervene in civil matters “on behalf of all citizens of the
State of Florida who are consumers. . .” The Public
Service Commission had allowed the Attorney General
to proceed on behalf of the State of Florida as a con-
sumer but had disallowed his representation of “the
people of Florida.” The Supreme Court holding in the
A31
Yarborough case was essentially that a decision as to
the Attorney General’s right to represent the citizens of
Florida was unnecessary since whatever relief was se-
cured for the State as a consumer would also benefit the
citizens without the necessity for further action. The
Attorney General in the instant case argues that Yar-
borough is precedent for his representation in this suit
not only of the State as a consumer but of the citizenry
of Florida as consumers. It cannot be. The Yarborough
Court expressly did not decide whether the Attorney
General could represent the people of Florida. And as to
the question of the Attorney General’s representation of
the State of Florida as a consumer, the Florida Court
made the following critical notation:
“Respondent P.S.C. has recognized the intervention
before it of the Attorney General on behalf of the
State of Florida as a consumer and this right is m
no wise questioned.” Yarborough, supra, p. 892.
(emphasis supplied)
It is obvious to this Court then that the all-important
question which is before this Court has not been directly
put to the Florida courts. This is particularly significant
since the instant case represents, in its magnitude, a sub-
stantial departure from even those common law powers
normally conceded to the Attorney General. At the very
least the character of this suit amplifies the language of
the Florida Supreme Court in Yarborough wherein it
stated that:
“(Public policy on the outer perimeter of his au-
thority (the authority of the Attorney General) is
therefore more a Legislative than Judicial question.
We take judicial notice that the Legislature of Flor-
A32
ida convenes in a few days and we defer to that
august body the broader question of the outer limits
of such authority.” Yarborough, supra, p. 894.
It is the opinion of this Court that the concession by
the Public Service Commission does not establish the law
of the state regarding the authority of the Attorney
General to institute this suit and that this determination
should be made by the courts of Florida and not by a
federal trial court. This Court feels that it is essential
to the growth and preservation of the state-federal rela-
tionship that federal courts not decide initially serious
questions of state law especially when there is a stream-
ined procedure under state law for determining questions
such as the power of the Attorney General to bring the
instant suit. This Court has in mind the right of the
Attorney General to file suit in cireuit court for a declara-
tory decree which decision is then directly reviewable by
the Florida Supreme Court. It is common knowledge that
under the practice of the Florida courts certain matters
may be expedited in such manner as to receive a speedy
determination or resolution of the issues.
This Court recognizes that the Attorney General of
Florida is the chief legal officer of the state. But the
Court is also mindful of the fact that disputes other than
those discussed in the Florida Supreme Court decisions
referred to above have arisen between the Attorney Gen-
eral and various other cabinet officers as to whether the
Attorney General has the right to represent them as
counsel. The argument advanced is that in many in-
stances in matters hefore the state cabinet the position
of the Attorney General is or may be antagonistic to
positions of the other cabinet officers. The authority of
A33
the Attorney General is thus critical in this suit in view
of the possible antagonistic positions and interests of the
many parties plaintiff whose rights are sought to be liti-
gated here.
It is the opinion of this Court that the matter should
be stayed until the state courts of Florida have deier-
mined the authority of the Attorney General of Florida
to bring this action in the capacities described in para-
graph 5-7 of the amended complaint filed herein. It is
unfortunate that this Court under existing law is not
allowed to certify this question directly to the Supreme
Court of the State of Fiorida for its determination of
this matter.
It is therefore
ORDERED:
(1) This cause is stayed for a period of thirty (30)
days so that the Attorney General may pursue a decision
in the state court with respect to his authority set forth
in the next preceding paragraph.
(2) Not later than thirty (30) days from this date
the Attorney General shall advise this Court of steps
taken to secure a decision of the state courts in the mat-
ters set forth above.
(3) At the end of the thirty (30) days period further
hearing shall be held for the taking of such actions as
this Court deems necessary and proper.
Deae and Ordered in chambers at Tallahassee, Flor-
ida, this 30th day of November, 1973.
/s/ David L. Middlebrooks
David L. Middlebrooks
United States District Judge
A34
STATUTES AND CONSTITUTIONAL PROVISIONS
Section 25.031, Florida Statutes, provides:
Supreme court authorized to receive and answer cer-
tificates as to state law from federal appellate
courts
The supreme court of this state may, by rule
of court, provide that, when it shall appear to the
supreme court of the United States, to any circuit
court of appeals of the United States, or to the court
of appeals of the District of Columbia, that there
are involved in any proceeding before it questions
or propositions of the laws of this state, which are
determinative of the said cause, and there are no
clear controlling precedents in the decisions of the
supreme court of this state, such federal appellate
court may certify such questions or propositions of
the laws of this state to the supreme court of this
state for instructions concerning such questions or
propositions of state law, which certificate the su-
preme court of this state, by written opinion, may
answer.
A35
Article IV (“Executive”) of the Florida Constitution
provides:
SECTION 1. Governor.—
(a) The supreme executive power shall be vested
in a governor. He shall be commander-in-chief of all
military forces of the state not in active service of
the United States. He shall take care that the laws
be faithfully executed, commission all officers of the
state and counties, and transact all necessary busi-
ness with the officers of government. He may require
information in writing from all executive or adminis-
trative state, county or municipal officers upon any
subject relating to the duties of their respective
offices.
SECTION 2. Lieutenant governor.—
There shall be a lieutenant governor. He shall per-
form such duties pertaining to the office of governor
as shall be assigned to him by the governor, except
when otherwise provided by law, and such other
duties as may be prescribed by law.
SECTION 4. Cabinet.—
(a) There shall be a cabinet composed of a secre-
tary of state, an attorney general, a comptroller, a
treasurer, a commissioner of agriculture and a com-
\issioner of education. In addition to the powers and
duties specified herein, they shall exercise such pow-
ers and perform such duties as may be prescribed by
law.
(b) The secretary of state shall keep the records
of the official acts of the legislative and executive
departments.
(c) The attorney general shall be the chief state
legal officer.
A36
(d) The comptroller shall serve as the chief fiscal
officer of the state, and shall settle and approve ac-
counts against the state.
(e) The treasurer shall keep all state funds and
securities. He shall disburse state funds only upon
the order of the comptroller, countersigned by the
governor. The governor shall countersign as a minis-
terial duty subject to original mandamus.
(f) The commissioner of agriculture shall have
supervision of matters pertaining to agriculture ex-
cept as otherwise provided by law.
(zg) The commissioner of education shall super-
vise the public education system in the manner pre-
scribed by law.
a e oe e *
SECTION 6. Executive departments.—All fune-
tions of the executive branch of state government
shall be allotted among not more than twenty-five
departments, exclusive of those specifically provided
for or authorized in this constitution. The adminis-
tration of each department, unless otherwise pro-
vided in this constitution, shall be placed by law
under the direct supervision of the governor, the
lieutenant governor, the governor and cabinet, a cab-
inet member, or an officer or board appointed by and
serving at the pleasure of the governor, except:
(a) When provided by law, confirmation by the
senate or the approval of three members of the
cabinet shall be required for appointment to or
removal from any designated statutory office.
(b) Boards authorized to grant and _ revoke
licenses to engage in regulated occupations shall be
assigned to appropriate departments and their mem-
bers appointed for fixed terms, subject to removal
only for cause.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.