FLORIDA LEGAL RESEARCH:The SourcesIn 60 minutes(More or Less)

Presented 3/22/07 Carol Yecies

Dual Legal Systems:When to apply Federal Law &

When to apply State Law

• Federal Courts in Florida

• 11th Circuit• Northern, Middle, &

Southern Districts

• State & Local Courts in Florida

• Florida Supreme Court

• District Courts of Appeal

• Circuit Courts

• County Courts

• Administrative Tribunals

Primary Sources of Florida Law- Statutory

• Florida Constitution

• Florida Session Law

• Laws of Florida

• Florida Statutes

• Florida Rules of Court

• Local Laws and Ordinances (Municipal Codes)

Primary Sources of Florida Law Case Law

• Florida Reports (1846 – 1948)

• Southern Reporter (First and Second Series)

• Florida Cases (from the Southern Reporter)

• Florida Law Weekly

• Florida Law Weekly Federal

• Florida Law Weekly Supplement

• Florida Supplement First & Second

Primary Sources of Florida LawAdministrative Law

• Florida Administrative Code

• Florida Administrative Weekly

• Florida Administrative Law Reports

• Specialized (Topical) Administrative Reports

Primary Sources of Florida LawExecutive Branch Materials

• State of Florida Office of the Governor Executive Orders

• Opinions of the Attorney General

• Opinions of the Division of Elections

Ethics Materials

• Advisory Opinions of the Commission on Ethics of the State of Florida

Secondary Sources of Florida Law• American Law Reports (ALRs)• Bar Journals• Bluebook• Citators• Dictionary• Digests• Form Books• Law Reviews/Law Journals• Legal Encyclopedias• Legal Newspapers• Treatises• Restatements• Uniform Laws/Model Acts• Words & Phrases

Miscellaneous

• Briefs and Records of Appellate Cases (Where available)

• Professional Ethics of the Florida Bar.

Back to the Basics

• The Florida Constitution – There are five prior Florida Constitutions (1838, 1861, 1865, 1868, and 1885). The current Florida Constitution is the 1968 Revision, as amended.

• As an extra note, Florida law prior to the 1838 Constitution is known as “Prior Organic Law” and is comprised of treaties, proclamations, ordinances, and Acts of Congress. This material may be found in Vol. 25 of FSA.

Florida Legislation

• Legislation begins as a bill in the Florida House or Senate. Once a bill is signed by the Governor, it becomes a Session Law. At the end of each session of the state legislature, the Session Laws collectively become the Laws of Florida, (sometimes referred to as the Session Laws of XXXX Year) for the given year of the session. The Laws of Florida are in chronological order. They are then organized by topic in the Florida Statues. These are the official state statutes, published by the state. West’s Florida Statutes Annotated are the unofficial state statutes.

Florida Rules of Court

• Under power granted by the state Constitution, the Florida Supreme Court is granted the power to promulgate the state rules of court. The rules are published in free-standing pamphlets, as well as in Florida Statutes Annotated.

• Rules are updated through opinions handed down by the Florida Supreme Court.

• Rule 9.800 of the Rules of Appellate Procedure is the Uniform Citation System for all Florida legal documents.

Local Laws and Ordinances

• Florida counties and municipalities have broad home rule power and produce legislation in the form of local ordinances. An example would be the Broward County Code of Ordinances, or the South Florida Building Code.

Florida Case Law

• Florida Reports is the original case reporter for the state, and contains Florida Supreme Court decisions from 1846 through 1948. In 1948, the Southern Reporter became the official state reporter and Florida Reports ceased publication.

• In 1957, the District Courts of Appeal were established, and their decisions were also included in the Southern Reporter.

Florida Case Law, cont’d.

• Additional sources of Florida decisions are Florida Cases, a West publication that extracts Florida decisions from the Southern Reporter; Florida Law Weekly, which contains Florida Supreme Court and DCA decisions; Florida Law Weekly Federal, which contains decisions from Florida federal district courts, the Federal 11th Circuit, and the U.S. Supreme Court.

Florida Case Law, cont’d

• From 1952 through July, 1992, selected opinions of lower courts were reported in Florida Supplement, and Florida Supplement, 2nd Series.

• Beginning in September, 1992, selected opinions from Florida circuit and county courts are published in Florida Law Weekly Supplement.

Florida Administrative Law

• The official administrative code of Florida is the Florida Administrative Code Annotated.

• The FAC is a compilation, by subject, of all Florida agency rules currently in force.

• Florida Administrative Weekly is the publication that provides notices of proposed rulemaking, hearings, emergency rulemaking actions, changes or withdrawal of proposed rules, and the text of proposed rules.

Florida Administrative Law, cont’d

• Many Florida administrative agencies function in a quasi judicial capacity, and issue decisions or orders. Since agency decisions are to be made available to the public, the Florida Administrative Law Reports has been designated by many state agencies as their official reporter.

• There are also several specialized agency reporters: Environmental and Land Use Administrative Law Reporter, Florida Department of Revenue Tax Reporter, Florida Public Service Reporter, and Florida Career Services Reporter.

Executive Branch Materials

• State of Florida Office of the Governor Executive Orders are issued in slip form and cover such topics as the assignment of state attorneys to avoid conflicts of interest, or suspending a state officer.

• Opinions of the Attorney General are opinions on questions of law as presented by state attorneys. Although a primary source, these opinions are persuasive rather than binding.

Executive Branch Materials, cont’d

• The Florida Department of State, Division of Elections, publishes advisory opinions which are published in the Opinions of the Division of Elections.

Ethics Opinions

• The Commission on Ethics was created by statute in 1974. This commission is charged with conducting investigations and making public reports on all complaints concerning breach of public trust by public officers and employees (other than judges). Commission findings are published in the Advisory Opinions of the Commission on Ethics of the State of Florida.

The Basics of Florida Secondary Material

• American Law Reports, fondly known as the ALRs – while the scope is national, if there is a Florida resource for the topic under discussion, it will be noted under the “Jurisdictional Table of Cited Statutes and Cases” for the article.

• Bar Journals – the Florida Bar Journal.• Bluebook – use it to find the official version of

statutes and case law for the jurisdiction.

Secondary Material, cont’d.

• Citators – Shepard’s and Keycite. Use them to check on the validity of your statutes and case law, and to update your sources.

• Dictionary – Florida specific is Waters’ Dictionary of Florida Law which offers definition of legal terms from material appearing in Florida statutes and cases.

• Digests – any questions?

Secondary Materials, cont’d.

• Form Books. There are many; West’s Florida Rules of Court – State provides suggested forms for the various sets of rules published in the book. Law Reviews/Law Journals. The law schools of Florida each have at least one law review/journal, and most have more than one.

• Legal Encyclopedias – Florida specific is Florida Jurisprudence (Fla. Jur.) first and second series.

Secondary Material, cont’d.

• Legal Newspapers – Florida specific would be the Florida Bar News, published by the Florida Bar Association, and the Daily Business Review (Broward, Miami-Dade, or Palm Beach editions) published by for profit vendor.

• Treatises. A treatise is a work on a specific topic of the law; there are many Florida specific treatises such as Florida Real Property Complex Transactions, Practice Under the Florida Probate Code, Adoption, Paternity, and other Florida Family Practice.

Secondary Materials, cont’d.

• The Restatements are published by the American Law Institute and are considered to be scholarly treatments of the law that attempt to set forth “black letter” rules for the common law. If Florida cases cite to a Restatement section, a paragraph note will appear in the “Court Citations” to this section.

Secondary Materials, cont’d.

• Uniform Laws/Model Acts – The National Conference of Commissioners on Uniform State Laws promulgates uniform laws to promote uniform law amongst the states. The Uniform Laws Annotated provides the wording of the uniform acts, the Commissioners comments, and where applicable, the statutory reference to states that have adopted a uniform law and incorporated it into the state’s laws.

• Two model acts, drafted by the American Law Institute are the Model Penal Code and Commentaries and the Model Business Corporation Act Annotated.

Secondary Materials, cont’d.

• Words and Phrases – This set is a cross between a dictionary and a digest (in fact one part of a West digest is the Words and Phrases section; and in the front of each Reporter published after the closing table of its associated digest). The entries in W&P are judicially defined terms by the court within the wording of the decision. Each entry is complete with the citation to the case from which it came.

Miscellaneous Sources

• Briefs and Records of Appellate cases.

• The Committee on Professional Ethics of the Florida Bar provides advisory opinions to members of the Bar relating to their proposed conduct. These opinions are printed in the Professional Ethics of the Florida Bar.

Additional Sources of Information

• Florida Legal Research: Sources, Process, and Analysis 2nd Edition, by Barbara J. Pusharis & Suzanne E. Rowe, Carolina Academic Press, 2002.

• Florida Legislative Histories: A Practical Guide to their Preparation and Use, by Carol A. Roehrenbeck, D & S Publishers, 1986.

• Guide to Florida Legal Research, 6th Edition, by Betsy Stupski, Lexis Publishing for The Florida Bar, 2001.

• Shepard Broad Website: http://www.nsulaw.nova.edu/library/links.cfm#fla

Additional Sources of Information

• Currently, there is no “free” site for the Florida Administrative Law Reports. There is “fee” site that does allow the user to search the FALR indices for free: http://www.falr.com/About.shtml.

• Florida Municipal codes available at:• http://www.municode.com/resources/

code_list.asp?stateID=9• Executive orders of the Governor of Florida

available at:• http://www.myflorida.com/myflorida/government/

laws/index.html

Points to Remember

• Both Lexis and Westlaw have vast databases of Florida information, but these will become “Fee” sites once you leave the cocoon of law school.

• Do search for information on the Internet, as governments continue to post primary documents on line. Just remember to check authority; “Carol’s Health Spa and Legal Research Service” may not be as authoritative as a government or scholarly site.

Appendix – or, Information I think you should have.

• Florida Constitution:• Except as limited by Article VI of the United

States Constitution the Constitution of the State of Florida is the primary source of law in Florida. The first Florida Constitution became effective in 1838. The current incarnation of the state Constitution is the 5th and is the 1968 Revision, as amended.

• The Florida Constitution is divided into 12 Articles. Articles are divided into Sections. Note, Title V of the Constitution defines the state judiciary.

Appendix – or, Information I think you should have, cont’d.

• The primary Florida law, prior to the first (1838) state Constitution, is known as “Prior Organic Law” and is comprised of treaties, proclamations, ordinances and Acts of Congress (federal) relating to the acquisition and territorial governance of Florida. This material may be found in Vol. 25 of the Florida Statutes Annotated (FSA). Note that this “Prior Organic Law” is not published in the official state statutes, the Florida Statutes published by the state. Additionally, the only state Constitution published in the official state statutes is the current (5th) version. Also note that Article V of the Florida Constitution lays out the court structure of the state. Article XI sets out the method/procedures for amending the state Constitution. Generally speaking, it is less cumbersome to amend a state constitution than the Federal constitution. Another difference between state and federal constitutions is that state Constitutions may contain provisions that are more specific than the federal Constitution. For example, the Florida Constitution provides for specific points of law such as “limiting cruel and inhumane confinement of pigs during pregnancy” (Article X, Section 21).

Appendix – or, Information I think you should have, cont’d.

• Florida Legislature and Legislation:• The Florida Legislature is composed of a Senate

and a House of Representatives. The Legislature meets in regular sessions beginning each March and lasts two months. The Legislature can vote to extend the sessions, or, in special circumstances provided for by law, call a special session. Special sessions may be “proclaimed” by the governor and are not extensions of the regular session, but are convened to address a specific issue and are designated “special sessions.”

Appendix – or, Information I think you should have, cont’d.

• Florida Legislation:• Legislation begins as a bill introduced in either house of the state

legislature. Once the bill is introduced, it begins its perilous journey through the legislative process, which includes, but is not limited to, readings in the house of introduction, committee actions, possible amendments or substitutions, legislative debate, until our little bill reaches stardom, and is approved by both houses of the legislature.

• Once the Senate and the House of Representatives agree on the wording of the bill, it is “enrolled” and sent to the governor. Once the governor has the bill he can: (1) sign it and forward it to the Secretary of State, so that it becomes law; (2) he can approve it without his signature and forward it to the Secretary of State, so that it becomes law without his specific endorsement; (3) he can veto the bill; or (4) he can do nothing. If he does nothing, including not vetoing the bill, it becomes law within 7 days of the bills presentation to him. The legislature can override the governor’s veto by a 2/3 vote.

Appendix – or, Information I think you should have, cont’d.

• The Florida Statutes are comprised of 48 Titles; each Title is divided into Chapters; Chapters may be divided into Parts. Chapters without parts are divided into Sections. In those Chapters that have Parts, the Parts are divided into Sections. Note, Title V of the Florida Statutes is the portion of the state statutes that deals with the state judiciary.

Appendix – or, Information I think you should have, cont’d.

• Florida Administrative law (and generally all state administrative law, to one extent or another), mirrors the concept of Federal Administrative law.

• The administrative law is authorized by statute: the rules and regulations of the Florida Administrative Code (FAC) are authorized by the applicable Florida Statutes (in fact, the last volume of the hard copy FAC contains a Statutory Cross Reference Table).

• There is a publication to provide advance notice to the public of proposed rules making and rule changes. For Florida, this publication is the Florida Administrative Weekly.

• Since many Florida administrative agencies function in a quasi judicial capacity, and issue decisions or orders, a publication is necessary to inform the public of these decisions – this is the Florida Administrative Law Reports.

Appendix – or, Information I think you should have, cont’d.

• Remember the importance of Court Rules• Local court rules• 11th Circ. – Dade• 17th Circ – Broward• Local rules and local

administrative orders• Rules of Court – State• Remember Rule 9.800 – Florida Rules of Appellate

Procedure Uniform Citation Rule for Florida Legal Document

• Rules of Court – Federal (for the Federal District Courts and Circuit Courts) that have authority within the state of Florida

Appendix – or, Information I think you should have, cont’d.

• Executive Orders – one of the topics covered by the exec. orders is the assignment of state attorneys to avoid conflicts. The Orders are published on the governor’s web site. Previous to the establishment of the webpage, the orders were published in slip form and bound at the end of the year.

• Executive Orders, as defined by the courts of New York (because I could not find a Florida definition):

• “Executive orders are simply voluntary arrangements or directions to implement a current interpretation of legislative policy.” New York Citizens Utility Bd. Inc. v. Pataki231 A.D.2d 185, 659 N.Y.S.2d 933, 935,N.Y.A.D. 3 Dept.,1997.July 10, 1997

The information presented in this Appendix comes from:

• Florida Legal Research: Sources, Process, and Analysis 2nd Edition, by Barbara J. Pusharis & Suzanne E. Rowe, Carolina Academic Press, 2002.

• Florida Legislative Histories: A Practical Guide to their Preparation and Use, by Carol A. Roehrenbeck, D & S Publishers, 1986.

• Guide to Florida Legal Research, 6th Edition, by Betsy Stupski, Lexis Publishing for The Florida Bar, 2001.