[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).
3
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,
4
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).
7
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.
16