SeconddcaemBraceStheSuPremacY-oF-textPrinciPle
Appellate Practice Section Chairs : BrandonBreslow – Kynes , Markman & Felman & DavidCostello – FLOfficeoftheAttorneyGeneral
Fornow , trialcourts andpractitionershave theirmarchingorders — thetextissupreme .
In State v . Crose , an en banc majority of the Second District Court of Appeal recently held that the “ recent controversy rule ” — that is , a court ’ s ability to consider a legislative amendment enacted soon after a controversy arises regarding the interpretation of a statute as an interpretation of the pre-amendment statute as opposed to a substantive change — “ is no longer a viable basis for construing the meaning of a statute .” 1 This article briefly highlights the court ’ s broader discussion of statutory interpretation underlying that decision .
Central to the majority ’ s reasoning was its observation that “ the Florida Supreme Court fundamentally changed the framework through which Florida courts interpret statutes .” 2 The majority reasoned that the Supreme Court had since “ abandoned the legislative intent approach ” 3 to statutory interpretation and “ instructed [ it ] to ‘ follow the “ supremacy-of-text principle ” — namely , the principle that “[ t ] he words of a governing text are of paramount concern , and what they convey , in their context , is what the text means .” 4 The majority concluded that because the recent controversy rule was “ an offshoot of the legislative intent approach to
ascertaining statutory meaning ,” the rule was “ completely incompatible ” with , and “ supplanted ” by , the supremacy-of-text principle . 5
Crose follows a series of cases decided by the Florida Supreme Court over the last four years employing the supremacy-of-text principle . 6 Two aspects of Crose are noteworthy . First , whereas the Supreme Court explained the textual principles that “[ it ] follow [ s ]” 7 and “[ it ] adhere [ s ] to ,” 8 the Second District construed those decisions as having “ instructed ” lower courts with “ marching orders ” to follow those same interpretive principles too . 9 In this regard , Crose is significant because it can be reasonably read as establishing a specific interpretive methodology in precedential terms for all courts in this district . Second , the Second District expressly noted that its interpretive function was “ not to [ ascertain ] any purported intent underlying the text .” 10 This rationale could have implications broader than the recent controversy rule in that any atextual tool of interpretation is no longer viable . 11 Practitioners in both civil and criminal cases should carefully consider Crose and how the supremacy-of-text principle might govern statutory interpretation
issues in their cases . For now , lower courts and practitioners in this district have their own marching orders — the text is supreme . n
1
378 So . 3d 1217 , 1235 ( Fla . 2d DCA 2024 ) ( en banc ).
2
Id . at 1232 .
3
Id . at 1233 ( citing Conage v . United States , 346 So . 3d 594 , 598 ( Fla . 2022 )).
4
Id . at 1224 ( second alteration in original ) ( quoting Ham v . Portfolio Recovery Assocs ., LLC , 308 So . 3d 942 , 946 ( Fla . 2020 )).
5
Id . at 1234 , 1239 , 1244 – 45 .
6
See , e . g ., Ham , 308 So . 3d at 946 ; Levy v . Levy , 326 So . 3d 678 , 681 ( Fla . 2021 ).
7
Ham , 308 So . 3d at 946 ( emphasis added ). 8
Levy , 326 So . 3d at 681 ( emphasis added ). 9
Crose , 378 So . 3d at 1224 , 1234 .
10
Id . at 1234 .
11
See id . at 1235 (“ A court using an atextual , intent-centric tool in a supremacy-of-text analysis would be like a homeowner trying to hammer a light bulb into a socket to gain more illumination .”).
Author : A . Evan Dix – Second District Court of Appeal
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