RICE v. DEPT. OF HEALTH & REHABILITATIVE

ROBERT P. SMITH, Jr., Judge.

Appellants June Rice and Stephen Stitt are married and are the parents of an infant son whom they wish to register from birth in the State's vital statistics as Austin John Rice or Austin John Rice-Stitt. By this appeal they complain that the Department of Health and Rehabilitative Services, acting through a subsidiary unit and officials who were unnecessarily named parties appellee,1 has refused to register the child's surname as Rice or Rice-Stitt. By letter written January 16, 1979, the HRS "Supervisor, Amendment Unit, Vital Statistics" advised appellants that Section 382.16(5)(a), Florida Statutes (1979),2 requires the child to be surnamed Stitt, after his father. Appellants urge on this appeal that the statute's direction that "the surname of the child shall be entered on the certificate as that of the husband" does not exclude the use as well of the wife and mother's surname, and that the restricted construction placed on the statute by HRS violates appellants' constitutional right to equal protection of the law, due process of law, and freedom of speech.

We take note preliminarily of the doubtful "agency action" on which these questions of statutory construction and constitutional validity are predicated. We have only the letter of a unit supervisor to evidence HRS's official action in this matter. There is no agency order recognizable under Section 120.59, Florida Statutes (1979), and there have been no formal or informal proceedings under Section 120.57. Appellants have not been denied, nor have they requested, such proceedings. In a sense, HRS has taken free-form action only. Capeletti Brothers, Inc. v. Dept. of Transportation, 362 So.2d 346 (Fla. 1st DCA 1978), cert. den., 368 So.2d 1374 (Fla. 1979). While it therefore may be debated whether the unit supervisor's letter of January 16, 1979, was "equivalent" to an agency order underlying the appeal,3 no party has contested the matter. We treat such questions pragmatically, dismissing an appeal from free-form action if appellant neglected a clear point of entry to Section 120.57 proceedings, or if agency proceedings have been undertaken since the appeal, Krestview Nursing Home v. Dept. of Health and Rehab. Services, 381 So.2d 240 (Fla. 1st DCA 1979); and deciding the appeal to secure a party remedies wrongfully denied by an agency, or if the free-form action is authentic beyond doubt and nothing can be gained through further agency proceedings. Harris v. Florida Real Estate Comm'n, 358 So.2d 1123, 1125 (Fla. 1st DCA 1978), cert. den., 365 So.2d 711 (Fla. 1978); General Development Corp. v. Division of State Planning, 353 So.2d 1199, 1207 (Fla. 1st DCA 1977).

In this case we proceed with the appeal in order to prescribe proceedings to be had on remand, leading to a final order construing Section 382.16(5) in light of a fully-developed record and preserving the pendant constitutional question for our later review, if necessary.

Our requirement of an agency order construing the governing statute in this case is no empty formality. The principal objective of many APA processes is to expose policy errors which have become habitual in an agency's free-form routine and to subject agency heads "to the sobering realization [that] their policies lack convincing wisdom... ." McDonald v. Dept. of Banking & Finance, 346 So.2d 569, 583 (Fla. 1st DCA 1977). Should this court intrude prematurely, before the agency head has had an opportunity to examine the de facto policy which underlies a free-form decision, an important APA goal will be lost and we shall have diminished the quality of agency performance, as Alexander Bickel said so descriptively, "by denuding them of the dignity and burden of their own responsibility."4

We therefore will remand the case to HRS and to the Division of Administrative Hearings, Department of Administration, for proceedings under Section 120.57(1), and for entry of the order required by Section 120.59. Appellants represent that HRS construes Section 382.16(5)(a) to require that the father's surname, and that name alone, be registered as the surname of a child born to the father's marriage. Whether HRS so construes the statute is for HRS to say by order; in proceedings to determine a party's substantial interests, the agency's duty to speak by an order is invariable, even when the statute may seem to the agency to admit of only one possible construction. Appellants urge that the statute is susceptible to a construction allowing registration of both parents' surnames as the child's hyphenated surname. Whether that is so is for HRS to say in the first instance, by an order. Appellants' construction of the statute is not necessarily foreclosed by a contrary HRS order entered earlier in proceedings to which appellants were not parties; there has been no rulemaking to construe the statute, and as to these appellants that earlier order has no res judicata effect. See McDonald, supra; State Dept. of Health and Rehab. Serv. v. Barr, 359 So.2d 503, 505 (Fla. 1st DCA 1978):

Our action in this case necessarily implies, and we here confirm, that we consider it entirely proper for a district court of appeal to pass on the constitutionality of a statute or rule when that is necessary in reviewing agency action, though there has been no agency decision on the constitutional question nor could there have been. At least twice, in Cross Key Waterways and Estuary Properties,5 this court decided important constitutional questions inhering in agency proceedings notwithstanding the agency's inability to decide such a question, and without regard for whether the question was formally and futilely raised before the agency. A district court's resolution of a constitutional or other legal question may occasionally be stymied by the absence of a complete record necessary for the decision, as the case now before us illustrates. But that may be remedied, as this case also illustrates, by remand to the agency or to the agency and DOAH. Sections 120.57, 120.68(6), (11), (13).

We recognize that sister courts have recently expressed a contrary view, which we understand to be that an agency decision on a question of law is a necessary predicate for the district court's power to decide that same question, and consequently that legal questions not cognizable by an agency must be diverted to circuit court.6 We respectfully disagree. Considering as we do that the extent of a district court's decision on review of agency action is ultimately a question of policy rather than power,7 we think there is precious little sound policy to justify dividing an administrative controversy into nonconstitutional issues and two kinds of constitutional issues and parceling them out to separate agency and circuit court litigations which may eventually merge again in the same district court of appeal or, worse, in different district courts. See, e.g., Coulter v. Davin, supra fn. 6, 373 So.2d at 428; Laborers' International Union of North America, Local 517 v. The Greater Orlando Aviation Authority, 385 So.2d 716 (Fla. 5th DCA 1980). Neither does it seem to us desirable to bifurcate the proceedings and stay agency proceedings on nonconstitutional issues until a circuit court renders judgment on constitutional issues. E.g., E.T. Legg and Co. v. Franza, supra fn. 6. Such a process engages judicial labor when the contender may yet be satisfied administratively, so undermining the twin policies of primary jurisdiction and exhaustion of remedies,8 and it rushes constitutional questions to judgment while potentially dispositive nonconstitutional questions are still open, so undermining "the well-settled rule that such a [constitutional] question ordinarily will be decided only when necessary to a disposition of the cause." In re Estate of Sale, 227 So.2d 199, 201 (Fla. 1969). The final alternative of leaving the case intact and the constitutional and nonconstitutional issues unified, but bootstrapping the whole controversy into circuit court, is obviously an abandonment of Chapter 120.

By asserting the power of district courts of appeal to decide constitutional questions on administrative appeals, we do not derogate the power of circuit courts to render declaratory judgments on the constitutionality of statutes. Sections 86.011, 120.73, Florida Statutes (1979). See Gulf Pines, supra fn. 7. But the circuit court's power to judge a statute's constitutionality in a case taken out of the administrative process does not displace a district court's power to render the same kind of judgment in a case not removed from the administrative process. The question of whether a circuit court should intervene to decide a constitutional issue, as the Supreme Court stated in Gulf Pines, is "ultimately [a question] of policy rather than power," supra fn. 7. So a circuit judge, importuned to intervene in agency proceedings in order to decide a constitutional issue, would appropriately consider, as did the Supreme Court in Gulf Pines, whether "... under the circumstances presented ... the claim [is] suitable for circuit court consideration." 361 So.2d at 699-700. One of those circumstances to be considered is whether, as in Gulf Pines, resolving the constitutional question is necessary to assure a predicate for the administrative proceedings, so avoiding the "pointless" expenditure of time and expense in a futile administrative effort. 361 So.2d at 699. When it is necessary to take evidence and find facts on a constitutional issue, it would seem appropriate for the circuit court to weigh the value of an immediate circuit court evidentiary hearing against the value of allowing the administrative process to continue unabated and undivided until the constitutional question can be presented, in context of an agency order deciding all other questions, to a district court of appeal. If at that point factfinding on the constitutional issue still seems necessary, the district court has full power to frame the issues and remand for the necessary hearing. Section 120.68(6), (13).

In other words, we again acknowledge that circumstances may make circuit court preemption of constitutional issues necessary and desirable at an early stage, even at the expense of delaying the administrative process, bifurcating the otherwise unified cause, or deciding a constitutional question when other dispositive issues await administrative determination. Compare State ex rel. Dept. of General Serv. v. Willis, 344 So.2d 580, 590 (Fla. 1st DCA 1977).9 But the circumstances justifying circuit court intervention do not include the supposed incapacity of a district court of appeal to reach and decide a constitutional issue which has been carried unresolved to that part of the judicial system through the regular processes of Chapter 120. See Department of Revenue v. Amrep Corp., 358 So.2d 1343, 1349 fn. 5 (Fla. 1978).10

In this decision we are not troubled by the principle that an appellate court ordinarily will not take up questions not passed on or presented to the trial court. That discipline is respected by appellate courts in recognition of and in deference to the distinct role of trial courts in the unitary judicial system. See Hartford Fire Ins. Co. v. Hollis, 58 Fla. 268, 50 So. 985 (1909); South Dade Farms, Inc. v. Peters, 107 So.2d 30 (Fla. 1958); Paul v. Kanter, 155 So.2d 402 (Fla. 3d DCA 1963). That practice need not deter us from considering freshly raised questions of constitutional law, or any question of law which inheres in the case and may fairly be decided on the record, in appeals from agency action. For in reviewing agency action we are not reviewing the judgment of another court of law, and the deference due the agency is of another kind, less for its judgment on questions of law than for its greater familiarity with the statutory scheme and its expertise in the field regulated. Moreover, when an appeal is taken from agency action to a district court, that is the first court to receive the case and is the first tribunal to which a claim of statutory unconstitutionality can effectively be made. The district court's ultimate task under Section 120.68 is to review agency "action," not agency judgments, and the district court is empowered to review that "action" completely, though all dispositive legal issues were not or could not have been decided by the agency. The district court's decision

We do not intimate how Section 382.16(5)(a) should be construed by HRS, nor need we decide by what test the constitutionality of the statute is to be judged, if that becomes necessary. Yet, we add the following comments and directions concerning the scope of agency proceedings to be had on remand in order to better inform HRS's construction of the statute and our own judgment when the case returns.

It is appropriate that HRS, in construing the statute, and this court, in later reviewing that action and deciding the pendent constitutional question, examine factually the nature and extent of the State's interest in organizing and preserving information concerning births and family relationships under the father's surname, as distinguished from the mother's surname or the hyphenated surnames of both parents. In other words, to the extent Section 382.16(5)(a) should be interpreted as requiring use of the father's surname exclusively, effectively surnaming each child born to a marriage according to how his father, and his father's father, was surnamed, we assume the State has some kind of fairly substantial interest, whether as parens patriae or merely to keep account of people, justifying that regulation. If the statute merely enacts custom, see Davis v. Roos, 326 So.2d 226 (Fla. 1st DCA 1976), that too should be factually determinable.

These appellants contest that the statute requires their son to be named from birth as Austin John Stitt, rather than as Austin John Rice or Rice-Stitt. If the statute does so require, they contest its constitutionality. Accordingly, HRS on remand will build a record on which it can enter an order expounding the factual premises on which the regulation rests; the reasonableness of the classifications made by the statute; the extent and weight of the State's interest in the end sought to be achieved; and the availability of less restrictive alternative means of achieving the goals of the statute. That kind of agency process is precisely what is prescribed by Chapter 120 when a mixed question of fact and policy, underlying one of statutory construction, is presented in proceedings to determine a party's substantial interests. Florida Cities Water Co. v. Florida Pub. Serv. Comm'n, 384 So.2d 1280, (Fla. 1980); McDonald, supra. Moreover, that kind of process will produce the record this court may require for meaningful consideration of the constitutional question. Compare Laird v. State, 342 So.2d 962, 965 (Fla. 1977).11

Jurisdiction is relinquished to the Department of Health and Rehabilitative Services for Section 120.57(1) proceedings and for entry of a final order adequately founded upon a record as required by Section 120.59. See Florida Cities Water Co., supra, 384 So.2d at 1281.

REMANDED.

ERVIN, J., concurs.

BOOTH, J., dissents, with opinion.

BOOTH, Judge, dissenting:

The majority, though now willing to allow further consideration below of appellants' claim, holds that the agency action is not final and that the record here is insufficient for "meaningful consideration" of the constitutional question. Not so. The agency denied registration of birth under the child's chosen name on September 13, 1978, and refused to allow amendment of the registration thereafter on January 16, 1979, to show the correct name. The letter of January 16, 1979, set forth in Footnote 3, infra, is final agency action. Further, the record here includes an HRS declaratory statement issued in another case on similar facts denying use of a hyphenated surname containing the names of both parents. Infra at Footnote 3. The agency has spoken.

As to the "form" of the final agency action here, it is indistinguishable from the letter considered by this court as sufficient in Harris v. Florida Real Estate Commission, 358 So.2d 1123 (Fla. 1st DCA 1978), cert. den. 365 So.2d 711 (Fla. 1978), wherein the Florida Real Estate Commission refused to accept and register the name of the appellant's real estate agency. Here, as in Harris, there was no question raised as to the authority of the registrar in speaking for the agency. Here, as in Harris, the agency's policies and the legal and factual basis thereof have been argued and briefed before this court. We may assume, for the purposes of this appeal, the truth of the factual contentions and policy statements made by the agency and pass on to the question of law presented.

The basis for the action of HRS in denying appellants' right to have the birth of their child registered in the child's chosen surname, a hyphenated name of both parents, is Florida Statutes § 382.16(5)(a).1 This statute suffers the same constitutional infirmities as the statute held unconstitutional in Jech v. Burch, 466 F.Supp. 714 (D.C.Hawaii 1979). In Florida and at common law, prior to the enactment of § 382.16, effective July 1, 1977,2 parents could give their children hyphenated names. Attorney General Opinion 76-235 (December 21, 1976).

Petitioners, June Rice and Stephen Stitt, are husband and wife, and parents of a son born September 9, 1978, in Alachua County, Florida. Petitioners were legally married at the time of conception and birth of said son, with the wife retaining her maiden surname of Rice and using it for all purposes. On September 13, 1978, petitioners attempted to register the child with the Bureau of Vital Statistics under the name of Austin John Rice. The local registrar refused such registration on the grounds that it did not comply with § 382.16(5)(a). Thereafter Petitioner Stitt registered the child under the name Austin John Stitt, as required by the registrar, against the wishes of both natural parents. Subsequently, petitioners obtained an amendment form from the Bureau of Vital Statistics and sought to amend the birth certificate to show the child's surname as Rice-Stitt, the hyphenated name containing surnames of both natural parents. On January 16, 1979, this request for amendment was denied by Ms. Myrna Wisham, Supervisor, Amendment Unit, Bureau of Vital Statistics.3

Petitioners have appealed the denial of the requested amendment, asserting deprivation of rights of privacy, and denial of due process and equal protection under the Constitutions of Florida and of the United States.

Respondents contend that the statute applies equally to deny all persons, whether married or unmarried, the right to choose the surname of their child, stating in their brief:

As justification for this abridgment of personal choice in a matter generally conceded to be of great importance to the individual, respondents assert nothing more than administrative convenience. Perhaps more convenient, and as anticipated by George Orwell in 1984, is the substitution of numbers for names. The Florida Statute here in question could well be the first step in that direction.

In Jech v. Burch, supra, Chief Judge Samuel P. King rejected arguments similar to those advanced here based on administrative convenience in the operation of the Registrar of Births in the Department of Health, stating, in part (466 F. Supp. at 718):

Respondents further point out that the computer could encounter difficulties where two persons with hyphenated names meet, marry and have a child of their own. In the bureaucratic quagmire, the idiosyncrasies of a computer are more important than the rights of individuals who must be named, tagged and indexed as prescribed.

Respondents contend that § 382.16(5)(a) is "indicative of the common law." That argument, however, was rejected by this court in Davis v. Roos, 326 So.2d 226 (Fla. 1st DCA 1976), wherein the Department of Highway Safety and Motor Vehicles argued, based on an early New York decision,4 that "by the common law" a woman upon her marriage takes her husband's surname, and her maiden name is "absolutely lost." This court disagreed and held that a woman was entitled to have her driver's license issued in her maiden name, stating (326 So.2d at 228, 229):

In Doe v. Dunning, 549 P.2d 1, 3 (Wash. 1976), the court considered the history of the individual right to choose a name, and stated:

In Secretary of The Commonwealth v. City Clerk of Lowell, 373 Mass. 178, 366 N.E.2d 717, 723, 725 (1977), the court held:

Neither Doe v. Dunning, supra, nor Secretary of The Commonwealth v. City Clerk of Lowell, supra, involved statutes such as Florida's which purports to require that the name of a legitimate child be the surname of the father. Florida and Hawaii may well be the only states having adopted such statutes.5

The Federal District Court, in striking the Hawaii statute, held (466 F. Supp. at 719, 720):

Respondents here have failed to put forth any overriding State interest sufficient to allow this interference with the personal right of petitioners to name their child. The value of the right abridged far exceeds the inconvenience of the State in accommodating that right.

The majority opinion expresses great concern for the procedural posture of the case now before us but little concern for the toils and tribulations of these individuals who have sought, since September of 1978, to have the birth of their child correctly registered and certificate issued. Nothing is lacking from the record here which can be supplied by further proceedings below. The agency has stated its policy, and that policy is facially supported, at least, by the language of the statute. The agency will not change its collective "mind" short of ruling by this court.

Nor is there need for further ruling on this court's authority to address, ab initio, constitutional issues which arise in administrative proceedings.6 The authority of the court to remand for further factual findings, where needed, is also clear. Florida Statutes § 120.68. Not clear is what can be gained in this case by further proceedings below. What is to be lost is obvious: time, money and peace-of-mind for individuals relegated by the majority to the administrative morass.

I dissent.