The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Appropriations
BILL: CS/SB 102
INTRODUCER: Community Affairs Committee and Senator Burgess
SUBJECT: Matters of Great Governmental Concern
DATE: April 14, 2021 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Paglialonga Ryon CA Fav/CS
2. Dale Sadberry AP Pre-meeting
3. RC
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 102 creates section 16.65, Florida Statutes, which establishes a system wherein the
Attorney General, as the state’s chief legal officer, is responsible for the prosecution,
management, and coordination of any civil proceedings brought by governmental entities in
matters of great governmental concern. The bill defines a “matter of great governmental
concern” as any fact, circumstance, or conduct that has caused substantial economic loss or other
harm of a similar nature to governmental entities in fifteen or more counties in this state.
The bill endows the Legislature with authority to declare a matter to be a matter of great
governmental concern by concurrent resolution. The Legislature also has the authority to amend
or rescind such resolution. A declaration of a matter of great governmental concern provides the
Attorney General with the sole authority to file a civil proceeding on behalf of the affected
governmental entities in the state unless and until that declaration is rescinded by the Legislature.
Under the bill, the Attorney General may take any legal action he or she determines is in the
public interest as long as such action is not inconsistent with the terms or provisions of the
Legislature’s resolution declaring the matter to be a matter of great governmental concern. When
a matter is declared a matter of great governmental concern, the Attorney General is expressly
provided the following procedural rights in state or federal court civil litigation:
May institute or intervene in any legal proceeding, including any pending appeal;
May consolidate, dismiss, release, settle, or take action that he or she believes to be in the
public interest;
BILL: CS/SB 102 Page 2
A declaration operates to abate or stay any relevant civil proceeding filed by a governmental
entity unless and until the Attorney General takes action in such proceeding; and
Any statute of limitations under Florida law affecting a claim by a governmental entity is
tolled for the declaration's pendency or one year, whichever is shorter.
The bill provides that public officials and employees involved in a matter of great governmental
concern have to furnish relevant assistance and information to the Attorney General, including
notice of any pending civil proceeding related to a matter of great governmental concern.
The bill requires that any award for damages or monetary payment from a settlement arising
from a matter of great governmental concern is subject to full appropriation by the Legislature
and may not be appropriated, expended, or encumbered by the Attorney General or the terms of a
settlement agreement. Also, any settlement or resolution of a civil proceeding by a governmental
entity taken after a declaration without the Attorney General's consent is void.
The bill states that the Department of Legal Affairs is exempt from section 120.57(3), Florida
Statutes, for purposes relevant to a matter of great governmental concern.
The bill also provides a procedure for an attorney to receive from any recovery reasonable
attorney fees and costs incurred in connection with representing a governmental entity before the
Attorney General issues a declaration. The bill describes the various criteria a court must
consider when calculating the amount of any reasonable attorney fees.
The bill takes effect upon becoming law.
II. Present Situation:
The Florida Executive Branch and Cabinet
Like the federal system, Florida's state government is divided into three branches: the executive
branch, the legislative branch, and the judicial branch. The governor of Florida is the chief
executive of Florida and the State's chief administrative officer responsible for the planning and
budgeting for the State and serves as chair when the governor and the Florida Cabinet sit as a
decision-making body in various constitutional roles. The governor has the power to execute
Florida's laws and to call out the state militia to preserve the public peace, being commander-in-
chief of the State's military forces that are not in active service of the United States.1
Florida is unique among U.S. states in its cabinet-style government. Members of the Florida
Cabinet are independently elected and have equal footing with the governor on issues under the
Cabinet's jurisdiction. The Cabinet consists of the attorney general, the commissioner of
agriculture, and the chief financial officer. Along with the governor, each member carries one
vote in the cabinet decision-making process. In the event of a tie, the side of the governor is the
prevailing side. Cabinet elections are held every four years, on even-numbered years not
divisible by four (such as 2018, 2022, etc.).2
1
Article IV, Sections 1 and 4, of the Florida Constitution.
2
Article IV, Sections 1 and 4, of the Florida Constitution.
BILL: CS/SB 102 Page 3
The State Attorney General
The Florida attorney general is the State's chief legal officer. The attorney general is responsible
for and the head of the Department of Legal Affairs.3 As with other elected statewide offices in
Florida, the attorney general is limited to serving two consecutive four-year terms. The attorney
general is second (behind the lieutenant governor) in the line of succession to the Governor of
Florida's office.4
Roles and Functions of the Attorney General
The Attorney General has various roles and functions within Florida's government and legal
system. These responsibilities are outlined in the Florida Constitution and state statute. The
Attorney General performs the following responsibilities:5
Defends the constitutionality of statutes duly enacted by the Legislature;
Issues formal legal opinions at the request of various public officials on questions relating to
the application of state law;
Is responsible for protecting Florida consumers from various types of fraud and enforcing the
state's antitrust laws;
Protects Floridians in Medicaid fraud cases;
Defends the state in civil litigation cases;
Represents the people of Florida when criminals appeal their convictions in state and federal
courts; and
Administers programs to assist victims of crime.
The Office of the Attorney General also houses and oversees other officials and departments.
The Solicitor General is a position within the Office of the Attorney General. The Solicitor
General is appointed by and serves at the pleasure of the Attorney General. The Solicitor General
oversees civil and criminal appeals involving the State and has the authority to decide whether
the State should appeal a case to the Florida Supreme Court, United States Supreme Court, or the
Eleventh Circuit Court of Appeal, as well as the authority to decide whether the State should file
or join an amicus brief in state or federal court.6
Furthermore, the Attorney General appoints the Statewide Prosecution from a list of nominees
selected by the Florida Supreme Court Judicial Nominating Commission. The Statewide
Prosecutor serves four years terms and acts as the agency head for eight offices throughout the
state that targets widespread criminal activities throughout Florida, including identity theft, drug
trafficking, and gang activity.7
3
Article IV, Sections 10, of the Florida Constitution.
4
Article IV, Sections 4, of the Florida Constitution.
5
See generally Office of Attorney General Ashley Moody Website, available at: http://www.myfloridalegal.com/ (last
visited Mar. 27, 2021).
6
Office of Attorney General, Role of Solicitor General, available at:
http://myfloridalegal.com/pages.nsf/main/a0cb91c5c403a0f385256cc6007a3808!OpenDocument (last visited Mar. 27, 2021).
7
Office of Attorney General, Office of Statewide Prosecution, available at:
http://www.myfloridalegal.com/pages.nsf/Main/D243EF87774E965185256CC600785693 (last visited Mar. 27, 2021).
BILL: CS/SB 102 Page 4
The Office of the Attorney General also houses the Florida Commission on the Status of
Women, the Council on the Social Status of Black Men and Boys, and the Office of Civil Rights,
which investigates and takes legal action against civil rights violations.8
Attorney General Common Law Powers
In addition to the Attorney General's variety of constitutional and statutory powers, courts have
ruled that state attorney generals have broad legal powers under common law. The common law
provides the Attorney General with authority to intervene in matters of compelling public
interest. Under common law, the Attorney General has the power and duty to prosecute all
actions necessary to protect and defend the state's property and revenue.9 Moreover, in Florida,
the attorney general is in many respects judicial in character and is clothed with considerable
discretion. This considerable discretion includes the Attorney General’s power to institute
litigation on his or her own initiative.10
In the case of State of Fla. ex rel. Shevin v. Exxon Corp., the U.S. Court of Appeals for the Fifth
Circuit ruled that the Attorney General of Florida retains common-law powers, and in the
absence of an express legislative provision to the contrary, the Attorney General's common law
powers prevail.11
The Doctrine of Parens Patriae12
The sovereign role of states and the exercise of police power is to promote the people's health,
safety, and welfare. In service of this sovereign responsibility, states may vindicate their interest
in the citizenships' welfare through a legal action referred to as parens patriae. The Latin phrase
Parens patriae means "parent of the country." Under this legal action, states may recover costs
or damages incurred because of behavior that threatens the state's citizenry's health, safety, and
welfare.13
American courts have uniformly recognized a state's authority to sue as parens patriae. In this
legal action, the state alleges that a defendant's misbehavior harmed the state's interest in
protecting its citizens and its interest in enforcing civil and criminal law. More specifically,
parens patriae actions have been ruled appropriate for suits seeking to abate public nuisances,
maintain access to energy sources, halt price-fixing, and enforce state anti-trust laws. In the
United States, parens patriae actions were greatly expanded over the 1900s and have been
described as an increasingly popular vehicle for state attorneys general to vindicate their
constituents' rights.14
8
Office of Attorney General Ashley Moody Website, available at: http://www.myfloridalegal.com/ (last visited Mar. 27,
2021).
9
See Thompson v. Wainwright, 714 F.2d 1495, 1500–1501 (11th Cir.1983)
10
See State of Fla. ex rel. Shevin v. Exxon Corp., 526 F.2d 266 (5th Cir. 1976).
11
See id.
12
See generally Richard P. Ieyoub & Theodore Eisenberg, State Attorney General Actions, the Tobacco Litigation, and the
Doctrine of Parens Patriae, 74 Tul. L.Rev. 1859 (2000).
13
Mississippi ex rel. Hood v. AU Optronics Corp., 876 F.Supp.2d 758 (S.D.Miss. 2014).
14
See Mississippi ex rel. Hood, 876 F.Supp.2d 758 (S.D.Miss. 2014). .
BILL: CS/SB 102 Page 5
A parens patriae action by a state is typically reserved for breaches of duty or inflictions of
damages on a statewide scale, warranting civil state involvement in litigation. A state is not
permitted to enter a controversy as a nominal party to forward individual citizens' claims. But it
may act as the representative of its citizens in original actions where the injury alleged affects the
general population of a state in a substantial way.15 Parens patriae actions are disfavored where
the injury falls “on a small group of citizens who are likely to challenge” the harm directly. But
where “a great many citizens ... are faced with increased costs aggregating millions of dollars per
year” and “cannot be expected to litigate [the issue] given that the amounts paid by each
consumer are likely to be relatively small, parens patriae suits are appropriate. Parens patriae
statutes are most common in the antitrust and consumer protection contexts.16
Procedural Limits to Attorney General Common Law Powers in Litigation
Although the Attorney General has broad authority to litigate matters in the public interest,
courts have ruled that the Attorney General must still abide by relevant judicial procedures and
rules. In the case of Bondi v. Tucker, Florida’s First District Court of Appeal ruled that when the
Attorney General does appear in court as a party litigant, he or she is subject to the same rules of
judicial procedure which other litigants must observe. In this case, Attorney General Bondi failed
to participate as a party in the lower tribunal proceedings and was denied the ability to invoke
appellate proceedings individually. In its decision, the court expressly recognizes that courts
maintain discretion to enforce judicial procedure even when the Attorney General is involved.17
Instances of State Involvement in Civil Litigation
Petroleum Products Overcharges
In Hawaii v. Standard Oil, the state of Hawaii brought a complaint against companies involved
in the petroleum industry, alleging defendants violated the Sherman Act, 26 Stat. 209, 15 U.S.C.
s 1, by entering into unlawful contracts; by conspiring and combining to restrain trade and
commerce in the sale, marketing, and distribution of refined petroleum products; and by
attempting to monopolize and actually monopolizing trade and commerce in the petroleum
industry.18
The State sought to recover damages in three distinct capacities. First, the state claimed it
suffered damages in its proprietary capacity for overcharges for petroleum products sold to the
State itself. Second, as parens patriae, Hawaii sought similar damages for overcharges paid by
the State's citizens. Third, the state looked to recover damages as the representative of all
purchasers in Hawaii for the overcharges.19
In this case, the Supreme Court held that the State of Hawaii could seek damages for its citizens
via a parens patriae suit alleging antitrust violations.20
15
Maryland v. Louisiana, 451 U.S. 725, 737, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981)
16
See id.
17
Bondi v. Tucker, 93 So.3d 1106 (Fla. 1st DCA 2012).
18
Hawaii v. Standard Oil Co. of Cal., 405 U.S. 251 (1972).
19
Id.
20
Hawaii, 405 U.S. 251 (1972). .
BILL: CS/SB 102 Page 6
Liquid Crystal Display Price-fixing
In the case of Mississippi ex rel. Hood v. AU Optronics Corp., the Attorney General of
Mississippi filed a state court parens patriae suit on behalf of the State of Mississippi against
manufacturers, marketers, sellers, and distributors of liquid crystal display (LCD) panels,
alleging that defendants engaged in a price-fixing scheme in violation of Mississippi Consumer
Protection Act (MCPA) and Mississippi Antitrust Act (MAA).21
The State sought the following relief: (1) a permanent injunction prohibiting the defendants from
continuing to engage in anti-competitive behavior; (2) civil penalties of $10,000 per LCD panel
product sold in Mississippi during the relevant time period, pursuant to the MCPA; (3) civil
penalties of up to $2,000 per month, per defendant for violations of the MAA during the relevant
time period; (4) restitution to the State for its own losses caused by purchasing LCD panel
products during the relevant time period; (5) restitution to the State on behalf of its citizens and
local governments who suffered losses by purchasing LCD panel products during the relevant
time period; (6) punitive damages