Fla. Ass'n of Prof. Lobbyists v. Div. of Leg. Inf.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
_____________________________ FILED
U.S. COURT OF APPEALS
No. 07-10435 ELEVENTH CIRCUIT
APRIL 23, 2008
_____________________________
THOMAS K. KAHN
CLERK
D. C. Docket No. 06-00123-CV-4-SPM-WCS

FLORIDA ASSOCIATION OF PROFESSIONAL
LOBBYISTS INC.,
a Florida not for profit corporation,
SPEARMAN MANAGEMENT COMPANY,
a Florida corporation,
GUY M. SPEARMAN, III,
a natural person,
RONALD L. BOOK, PA,
a Florida professional association,
RONALD L. BOOK,
a natural person,
Plaintiffs-Appellants,
versus

DIVISION OF LEGISLATIVE INFORMATIONSERVICES
OF THE FLORIDA OFFICE OF
LEGISLATIVE SERVICES, a Florida state agency,
THE FLORIDA COMMISSION ON ETHICS,
an independent constitutional commission,
TOM LEE,
as president of the Florida Senate,
ALLAN BENSE,
as speaker of the Florida House of Representatives,

Defendants-Appellees,
 _________________________________________

Appeal from the United States District Court
for the Northern District of Florida
_________________________________________

(April 23, 2008)

Before EDMONDSON, Chief Judge, DUBINA, Circuit Judge and MARTIN,*
District Judge.

PER CURIAM:

CERTIFICATION FROM THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT TO THE SUPREME COURT
OF FLORIDA, PURSUANT TO FLA. R. APP. P. 9.150(a). TO THE
SUPREME COURT OF FLORIDA AND ITS HONORABLE JUSTICES:

In this case, we are asked to assess the constitutionality of legislation

enacted by the Florida Legislature that regulates legislative and executive

lobbying in the State of Florida. The Florida Association of Professional

Lobbyists, Inc., et al., (“Plaintiffs”) assert that the legislation — Chapter 2005-

359, Laws of Florida (“the Act”) — is facially unconstitutional under both the

Florida and United States Constitutions. They challenge the Act on four grounds,

three of which involve questions of Florida constitutional law and one of which

involves a question of federal constitutional law. Because our resolution of the

*
Honorable Beverly B. Martin, United States District Judge for the Northern District of Georgia,
sitting by designation.

2
state law questions in this case is a matter of Florida constitutional law to which

the Florida Supreme Court has not definitively spoken, we certify these questions

to the Florida Supreme Court. For the remaining federal law question, we affirm

the district court’s decision that the Act was not unconstitutionally vague or

overbroad.

I. Background

At a special session in December 2005, the Florida Legislature passed the

Act, now codified at sections 11.045 and 112.3215 of the Florida Statutes, which

regulates legislative and executive lobbying activities in the State of Florida.

According to the Act, “no lobbyist or principal shall make, directly or indirectly,

and no member or employee of the legislature,” Fla. Stat. § 11.045(4)(a) (emphasis

added), nor any “agency official, member, or employee shall knowingly accept,

directly or indirectly, any expenditure,” id. § 112.3215(6)(a).1 Given the use of the

conjunctive “and,” the Act does not bar all lobbying expenditures; instead, it bars

1
The term “expenditure” is defined as “a payment, distribution, loan, advance, reimbursement,
deposit, or anything of value made by a lobbyist or principal for the purpose of lobbying.” Fla. Stat.
§§ 11.045(1)(d), 112.3215(1)(d).

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only those expenditures that are made for lobbying purposes and are accepted by

an official.

The Act also includes a disclosure provision that requires lobbying firms to

file quarterly statements reporting the total compensation paid or owed by their

“principals” — that is, their clients. Id. §§ 11.045(3)(a)1.c, 112.3215(5)(a)1.c.

Lobbying firms must also disclose the full name, business address, and telephone

number of each principal, as well as the total compensation that each principal

paid or owed to the lobbying firm. Id. §§ 11.045(3)(a)2, 112.3215(5)(a)2.

In addition to the disclosure provision, the Act has enforcement provisions

that allow for audits as well as for the filing of sworn complaints. Id. §§

11.045(7)-(8), 112.3215(8)-(10). For legislative lobbying, every sworn complaint

or audit indicating a possible violation (with the exception of an untimely report)

is subject to investigation by designated committees of either house of the

Legislature. Id. § 11.045(7). If a violation is found, the committee must report its

findings, together with a recommended penalty, to either the President of the

Senate or Speaker of the House, as appropriate. Id. The President of the Senate or

Speaker of the House then submits the committee report and recommendation to

their respective chamber; and a final determination is made by a majority vote of

the members. Id. Authorized penalties include “a fine of not more than $5,000,

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reprimand, censure, probation, or prohibition from lobbying for a period of time

not to exceed 24 months.” Id.

For executive lobbying, every sworn complaint or audit indicating a

possible violation (with the exception of an untimely report) is subject to

investigation by the Commission on Ethics. Id. § 112.3215(8)(a), (c). If the

Commission finds probable cause of a violation, then it submits a report to the

Governor and the Cabinet for a determination of the penalty. Id. § 112.3215(9),

(10). Authorized penalties include reprimand, censure, or a prohibition on

lobbying any agency for a period not to exceed two years. Id. § 112.3215(10).

But, “[i]f the violator is a lobbying firm, the Governor and Cabinet may also assess

a fine of not more than $5,000.” Id.

In the district court, Plaintiffs sought a declaration that the Act was facially

unconstitutional. They also sought preliminary and permanent injunctions against

the Act’s enforcement. Plaintiffs argued that the Act was not validly passed by the

legislature because it was not read three times after it was introduced by the

House. They argued that the Act infringed upon the Florida Supreme Court’s

authority to regulate the practice of law; and they argued that the Act contravened

Florida’s separation of powers doctrine. Plaintiffs also argued that the Act’s

expenditure restrictions, disclosure requirements, and enforcement provisions

5
violated their rights to free speech, due process, equal protection, and privacy

under both the United States and Florida Constitutions.2 The district court denied

Plaintiffs’ motions for preliminary injunction and summary judgment, concluding

that Plaintiffs were unlikely to succeed on their claims. The district court then

granted summary judgment to the Division of Legislative Information Services, et

al., (“Defendants”) on all of Plaintiffs’ claims. Plaintiffs now appeal.

II. Discussion

On appeal, Plaintiffs raise four issues. Three involve questions of state

constitutional law: (1) whether the Act violates Florida’s separation of powers

doctrine; (2) whether the Act was improperly enacted under the Florida

Constitution; and (3) whether the Act infringes upon the Florida Supreme Court’s

regulatory authority over the practice of law. The fourth issue involves a question

of federal constitutional law: whether the Act is unconstitutionally vague or

overbroad.3

2
This lawsuit was originally filed in state court but was then removed to federal district court on
the basis of federal question jurisdiction with supplemental jurisdiction over the state law claims.
3
To the extent that Plaintiffs also contend that the Act is vague and overbroad under the Florida
Constitution, we note that the Florida Supreme Court applies the same principles as exist under the
United States Constitution. See Dep’t of Educ. v. Lewis, 416 So. 2d 455, 461 (Fla. 1982) (“The

6
 A. State Law Issues

“Substantial doubt about a question of state law upon which a particular

case turns should be resolved by certifying the question to the state supreme

court.” Jones v. Dillard’s, Inc., 331 F.3d 1259, 1268 (11th Cir. 2003). Here,

substantial doubt exists about the three issues in this case that relate solely to

matters of Florida constitutional law.

First, Plaintiffs assert that the Act, or at least certain parts of it, violate

Florida’s separation of powers doctrine. They specifically challenge provisions in

section 11.045 that authorize designated committees of the Legislature (1) to

provide advisory opinions on the applicability and interpretation of relevant

provisions of the Act, (2) to investigate any person or lobbying firm alleged to

have violated the Act, and (3) to make findings and a recommendation of

punishment for ultimate decision by their respective houses. Plaintiffs contend

that these provisions, by assigning to the Legislature the power to interpret and

enforce the Act as well as the power to adjudicate violations of the Act,

scope of the protection accorded to freedom of expression in Florida under article I, section 4 is the
same as is required under the First Amendment.”); State v. Wershow, 343 So. 2d 605, 608-09 (Fla.
1977) (applying the same test for vagueness to a challenge brought under both article I, section 9 of
the Florida Constitution and the Fifth and Fourteenth Amendments to the United States
Constitution).

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unconstitutionally encroach upon powers belonging to the judicial and executive

branches of the state government.

On the second issue, Plaintiffs claim that the Act was not validly enacted

pursuant to state constitutional provisions governing special sessions.4 They argue

that the Act is invalid because it was not read three times after it was properly

introduced by a two-thirds vote; instead, it was read twice before introduction and

only once after introduction.

The third issue is whether the Act infringes the Florida Supreme Court’s

authority to regulate the practice of law in Florida. Relying upon Article V,

Section 15 of the Florida Constitution,5 Plaintiffs contend that the Act, especially

its compensation reporting provisions, invades the exclusive jurisdiction of the

Florida Supreme Court to regulate the admission of persons to the practice of law

and to discipline those admitted. According to Plaintiffs, lobbying by lawyers

constitutes the practice of law. Thus, because the Act requires lawyers who lobby

4
The relevant provisions of the Florida Constitution are: (1) Article III, Section 3(c)(1), which
provides that in a special session convened by the Governor’s proclamation, “only such legislative
business may be transacted as is within the purview of the proclamation . . . or is introduced by
consent of two-thirds of the membership of each house”; and (2) Article III, Section 7, which
provides that, to be validly enacted, a bill “shall be read in each house on three separate days, unless
this rule is waived by two-thirds vote.”
5
This provision states, “The supreme court shall have exclusive jurisdiction to regulate the
admission of persons to the practice of law and the discipline of persons admitted.”

8
on behalf of a client to report the compensation they received, Plaintiffs argue that

the Act runs afoul of the rules regulating the Florida Bar. Bar rules forbid lawyers

from disclosing confidential client information, including compensation paid by

the client, without the client’s consent.

Having reviewed all the arguments and the case law, we conclude that the

law in Florida is not sufficiently well-established for us to determine with

confidence whether the Act is unconstitutional under the state’s constitution. In

particular, we are uncertain about whether the provisions of the Act authorizing

designated committees of the Legislature to issue advisory opinions, to investigate

violations of the Act, and to recommend penalties to the Legislature for violations

of the Act contravene the Florida Constitution’s separation of powers. We are also

uncertain about whether the Florida House of Representatives properly waived the

constitutional requirement that a proposed bill be read on three separate days after

it has been introduced. In addition, we are uncertain about whether the Act, by

regulating lawyer lobbyists, unconstitutionally infringes the Florida Supreme

Court’s exclusive jurisdiction to regulate the practice of law in the state.

Under the Florida Constitution, this court may certify a question to the

Florida Supreme Court if it “is determinative of the cause and for which there is no

controlling precedent of the supreme court of Florida.” Fla. Const. art. V, §

9
3(b)(6). Because we have found no such controlling precedent, we certify the

following questions to the Florida Supreme Court:6

(1) Whether the provisions of section 11.045 that authorize designated
committees of the Legislature to issue advisory opinions, to investigate violations
of the Act, and to recommend punishment for approval by the full Legislature
violate Florida’s separation of powers doctrine.

(2) Whether the Florida House of Representatives validly passed the Act
under Article 3, Section 7 of the Florida Constitution, notwithstanding that the bill
was not read on three separate days after it was properly introduced.

(3) Whether the Act violates the exclusive jurisdiction of the Florida
Supreme Court under Article V, Section 15 of the Florida Constitution by
regulating the lobbying activities of lawyers.

B. Federal Law Issue

The remaining issue in this case is whether the Act — on its face — is

vague or overbroad in violation of the United States Constitution. Plaintiffs

contend that the Act’s provisions banning expenditures as well as its

compensation reporting provisions are unconstitutionally vague and overbroad.

6
Our statement of the certified questions is not intended to restrict the issues considered by the
Florida Supreme Court. Stevens v. Battelle Mem’l Inst., 488 F.3d 896, 904 (11th Cir. 2007); see
also Miller v. Scottsdale Ins. Co., 410 F.3d 678, 682 (11th Cir. 2005) (“Our phrasing of the certified
question is merely suggestive and does not in any way restrict the scope of the inquiry by the
Supreme Court of Florida.”). We are mindful that “latitude extends to the Supreme Court’s
restatement of the issue or issues and the manner in which the answers are given.” Stevens, 488 F.3d
at 904 (internal quotation marks omitted).

10
On the issue of vagueness, Plaintiffs argue that statutory terms such as

“expenditure” or “direct” and “indirect” are so inadequately defined that a person

of common intelligence must guess at their meaning and that, as a result, the Act

allows for unbridled discretion in its enforcement.

To overcome a vagueness challenge, a statute must “give the person of

ordinary intelligence a reasonable opportunity to know what is prohibited”; and it

must “provide explicit standards for those who apply them” to avoid arbitrary and

discriminatory enforcement. Grayned v. City of Rockford, 92 S. Ct. 2294, 2298-

99 (1972).

We conclude that the Act does not violate due process standards about

vagueness. For instance, it clearly provides that an expenditure — which is

separately defined in sections 11.045(1)(d) and 112.3215(1)(d) — is unlawful only

if it is made by a lobbyist or principal and accepted by a government official.

Contrary to Plaintiffs’ suggestion, the Act cannot reasonably be read to bar all

expenditures for lobbying purposes (for example, a cab fare to the capitol).

Instead, it only bars those lobbying expenditures that are accepted by a

government official. See Fla. Stat. §§ 11.045(4)(a), 112.3215(6)(a) (stating that

“no lobbyist or principal shall make, directly or indirectly, and no member or

employee of the legislature” nor any “agency official, member, or employee shall

11
knowingly accept, directly or indirectly, any expenditure” (emphasis added)). In a

similar way, we do not regard the term “indirect” as vague: a person of common

intelligence would understand that it applies to expenditures or compensation paid

through a third party.

In short, the statutory language at issue “provide[s] explicit standards for

those who apply them” and “give[s] the person of ordinary intelligence a

reasonable opportunity to know what is prohibited.” Grayned, 92 S. Ct. at 2298-

99. As the Supreme Court observed, “we can never expect mathematical certainty

from our language.” Id. at 2300. With this observation in mind, we cannot

conclude that the statutory language Plaintiffs challenge is so vague as to violate

the Constitution.

Plaintiffs also contend that the Act’s compensation reporting provision is

unconstitutionally overbroad because it requires “disclosure of compensation paid

to a lobbyist even where that compensation has not been paid for expressly

advocating passage or defeat of legislation.” A law is overbroad that “does not

aim specifically at evils within the allowable area of State control but, on the

contrary, sweeps within its ambit other activities that in ordinary circumstances

constitute an exercise of freedom of speech.” Thornhill v. State of Alabama, 60 S.

Ct. 736, 742 (1940). The First Amendment doctrine of overbreadth is an

12
exception to the normal rules governing facial challenges. Virginia v. Hicks, 123

S. Ct. 2191, 2196 (2003).7 For the First Amendment, a law is facially invalid if it

“punishes a ‘substantial’ amount of protected free speech, ‘judged in relation to

the statute’s plainly legitimate sweep.’” Hicks, 123 S. Ct. at 2196 (quoting

Broadrick v. Oklahoma, 93 S. Ct. 2908, 2918 (1973)). We note, however, the

Supreme Court’s admonition that application of the overbreadth doctrine is

“strong medicine” that should be used “sparingly and only as a last resort.”

Broadrick, 93 S. Ct. at 2916.

Plaintiffs do not deny the Legislature’s legitimate interest in the public

disclosure of compensation paid to a lobbying firm for the purpose of lobbying.

They instead contend that the statute sweeps too broadly by requiring the reporting

of all compensation paid to lobbyists “irrespective of how the funds are spent.”

We agree with the district court that Plaintiffs have misconstrued the Act.

Contrary to their claim that the Act requires the disclosure of all compensation

paid to lobbyists regardless of how the funds are used, the Act actually only

requires the reporting of compensation that lobbyists receive “for any lobbying

activity.” Fla. Stat. §§ 11.045(1)(b), 112.3215(1)(c).

7
In general, to challenge a statute facially, “the challenger must establish that no set of
circumstances exists under which the Act would be valid.” United States v. Salerno, 107 S. Ct.
2095, 2100 (1987).

13
 That the compensation reporting provision is limited to compensation

received “for any lobbying activity” does not end the matter, however. The Act

defines “lobbying” as “influencing or attempting to influence legislative action or

nonaction through oral or written communication or an attempt to obtain the

goodwill of a member or employee of the Legislature.” Id. § 11.045(1)(f); see also

id. § 112.3215(1)(f) (defining “lobbies” as “seeking, on behalf of another person,

to influence an agency with respect to a decision of the agency in the area of

policy or procurement or an attempt to obtain the goodwill of an agency official or

employee”). Plaintiffs argue that lobbying activity, as defined in the Act,

encompasses not only direct communications from lobbyists to legislators and

state officials (which is undoubtedly a legitimate object of regulation8), but also

indirect communications — such as opinion articles, issue advertisements, and

8
In United States v. Harriss, 74 S. Ct. 808 (1954), the Supreme Court upheld the disclosure
requirements in the Federal Regulation of Lobbying Act of 1946, which applied to persons who
solicit, collect, or receive money or any other thing of value to aid “‘[t]he passage or defeat of any
legislation by the Congress of the United States’” or “‘[t]o influence, directly or indirectly, the
passage or defeat of any legislation by the Congress of the United States.’” Id. at 812-13 (quoting
Section 307 of the Lobbying Act). To avoid constitutional infirmity, the Court construed the
disclosure requirements narrowly to cover only those “contributions and expenditures having the
purpose of attempting to influence legislation through direct communication with Congress.” Id. at
815 (emphasis added). In doing so, the Court upheld the statute against First Amendment challenge
on the ground that Congress was “not constitutionally forbidden to require the disclosure of lobbying
activities” for the purpose of “self-protection.” Id. at 816.

14
letterwriting campaigns — from lobbyists on behalf of their clients to the press

and public at large for the purpose of influencing legislation or policy.

We have made clear that the state has a compelling interest “in ‘self-

protection’ in the face of coordinated pressure campaigns” directed by lobbyists.

Fla. League of Prof’l Lobbyists, Inc. v. Meggs, 87 F.3d 457, 460, 461 (11th Cir.

1996). Also, lobbyist disclosure laws of the sort at issue here allow voters to

appraise “the integrity and performance of officeholders and candidates, in view of

the pressures they face.” Id. at 460. We have said that these interests are

compelling not only when the pressures to be evaluated by voters and

officeholders are “direct,” but also when they are “indirect.” See id. at 461 (“[T]he

government interest in providing the means to evaluate these pressures may in

some ways be stronger when the pressures are indirect, because then they are

harder to identify without the aid of disclosure requirements.”); see also Minn.

State Ethical Practices Bd. v. Nat’l Rifle Ass’n of Am., 761 F.2d 509, 511-13 (8th

Cir. 1985) (upholding a state’s interest in applying its reporting requirements to

indirect communications between a lobbyist and members of an association for the

purpose of influencing specific legislation).

Because the First Amendment allows required reporting of considerably

more than face-to-face contact with government officials, we decline to invalidate

15
the Act on its face as substantially overbroad. See Meggs, 87 F.3d at 461.

Instead, we leave “whatever overbreadth may exist [to] be cured through case-by-

case analysis of the fact situations to which [the Act’s] sanctions, assertedly, may

not be applied.” Broadrick, 93 S. Ct. at 2918.

III. Conclusion

After reviewing Florida case law, we are uncertain whether the Act violates

Florida’s separation of powers doctrine, was properly enacted under Florida law,

or infringes upon the Florida Supreme Court’s jurisdiction. Because these

questions are solely issues of state law that should be decided by the Florida

Supreme Court, we certify these questions to the Florida Supreme Court. We do,

however, affirm the district court’s ruling that the Act is not vague or overbroad

under the United States Constitution.

AFFIRMED in part, and QUESTIONS CERTIFIED.

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