Nicolas Hamann, Florida Constitutional Law: Reducing Legislative Discretion: A Clearly Unclear Application of Expressio Unius

58 Fla. L. Rev. 935 (2006) | | | |

TEXT :: The Opportunity Scholarship Program (OSP) provided public school students with the option of transferring to either an eligible private school or to another public school that met certain academic requirements. If the student chose a private school, the State would then issue a voucher for the amount that it would have cost for the student to attend the former public school. Along with other interested groups, parents of schoolchildren brought several constitutional challenges to the OSP. Disagreeing with the Petitioners, a lower court declared the OSP unconstitutional. However, a three-judge appellate panel reversed and remanded. Following a subsequent order by the lower court declaring the OSP unconstitutional, the appellate court issued an en banc decision affirming the order. Since a district court of appeal had declared a state statute unconstitutional, the Supreme Court of Florida obligatorily reviewed the decision, and HELD, that the OSP violated article IX, § 1 of the Florida Constitution, because the OSP made public funds available to private schools.

Historically, Florida courts interpreted the Florida Constitution as limiting legislative power. In a facial constitutional challenge, courts often employ maxims of statutory construction to determine whether legislation falls within the bounds of the constitution. Though not always used in constitutional interpretation, expressio unius est exclusio alterius is a principle of construction which provides that “‘the expression of one thing implies the exclusion of another.’” Consequently, courts have used expressio unius to invalidate statutory enactments as beyond the limits prescribed by the constitution. However, as in Marasso v. Van Pelt, courts sometimes use the maxim to restrict limitations that are merely implied by the language of the constitution.


In Marasso, the police arrested a man for possession of excessive amounts of liquor. At the time, the Florida Constitution expressly prohibited the manufacture, sale, or trade of alcohol, but was silent on the legality of possession. The legal issue was the constitutionality of a statute regulating alcohol possession. As a foundation, the court stated that expressio unius should never be used to defeat legislative intent. Recognizing that the Florida Constitution gave the legislature permission to “enact suitable laws” to enforce the constitutional provisions, the court stressed that a statute which “has a real relation to the subject and object” of a constitutional provision is “suitable law.” Furthermore, the court rejected an application of expressio unius that would use constitutional silence as the sole basis for implied limits on legislative power. Instead, the court found that implied limits on legislative power may only be used when absolutely necessary to implement an “express provision of the constitution.”

Essentially, by requiring necessity, the court indirectly acknowledged the notion that the Florida Constitution is a limitation, and not a grant, of power. Since regulating alcohol possession not only effectuated the general purpose of the constitutional provisions-to discourage alcohol consumption- but actually promoted the specific express provisions, the court held that the regulation was constitutional. However, the Marasso court did not determine the degree of clarity needed to find the necessity required to impliedly limit legislative power.

Eight years later, the court further clarified the application of expressio unius in the context of the school system in Weinberger v. Board of Public Instruction. The court considered whether the payment pattern of school district bonds, which conformed to statutory mandates, was constitutionally valid. The constitutional provision at issue required the school board to pay off the bonds according to a specific payment schedule. However, a later statute authorized the school board, in its discretion, to determine the manner in which the bonds became payable. Using expressio unius, the court stressed “that where the Constitution expressly provides the manner of doing a thing, it impliedly forbids its being done in a substantially different manner.” Recognizing that the three-year payment periods that the school board approved were incongruent with the constitutional schedule, the court prohibited the legislature from allowing a discretionary payment pattern. In analyzing whether the legislature acted contrary to an express limitation in the constitution, the court provided several guidelines.

The court delineated three instances signifying express contradictions between statutes and constitutional provisions in an almost quantifiable framework. By emphasizing a numerical measure, the court refined Marasso’s standard of absolute necessity. According to the court, setting a specific threshold value in the constitution-such as the amount of votes necessary for authorization, the limit of debt incurred, or specific maturity dates- was critical to indicating a clear contradiction when compared to the legislative enactment. In other words, where the statute opposed these clear quantifiable limits, there was a direct conflict rendering the statute void. While the Weinberger court provided a means to analyze a conflict between statutes and constitutional provisions, it did not provide guidance for considering legislative purpose during the conflict analysis.

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