In the District Court of Appeal

Fourth District, State of Florida

Case No. 4D15-3516

SALLY A. MCQUISTON,

Appellant,

v.

GARY R. NIKOLITS, as Property Appraiser of Palm

Beach County, MARSHALL STRANBURG, as Executive

Director of the Florida Department of Revenue, and

ANNE GANNON, as Tax Collector of Palm Beach County,

Appellees.

ANSWER BRIEF OF MARSHALL STRANBURG, AS EXECUTIVE

DIRECTOR OF THE FLORIDA DEPARTMENTOF REVENUE

On Appeal from a Final Order of the Circuit Court of the

Fifteenth Judicial Circuit, Palm Beach County, Florida

Case No. 502013CA017685XXXXMB

PAMELA JO BONDI

ATTORNEY GENERAL

Office of the Attorney General JORDAN E. PRATT (FBN 100958)

The Capitol, PL-01 Deputy Solicitor General

Tallahassee, Florida 32399-1050

(850) 414-3300 JEFFREY DIKMAN (FBN 274224)

(850) 410-2672 (fax) Senior Assistant Attorney General

jordan.pratt@myfloridalegal.com

jeffrey.dikman@myfloridalegal.com

Counsel for Appellee Marshall Stranburg

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TABLE OF CONTENTS

STATEMENT OF THE CASE AND FACTS .......................................................... 1

SUMMARY OF THE ARGUMENT ........................................................................ 1

ARGUMENT ............................................................................................................. 3

I. UNDER THIS COURT’S PRECEDENT, A COUPLE IN AN “INTACT

MARRIAGE” IS A “FAMILY UNIT” AND THEREFORE CANNOT CLAIM

MORE THAN ONE HOMESTEAD EXEMPTION. ................................................. 3

II. IN LIMITING FAMILY UNITS TO ONE HOMESTEAD EXEMPTION, THE

FLORIDA CONSTITUTION DOES NOT RAISE ANY EQUAL PROTECTION

OR DUE PROCESS PROBLEM. .......................................................................10

A. The Florida Constitution Cannot Violate Itself, and in Any

Event, Section 6(b) Is Consistent with Equal Protection

Principles. ..............................................................................................11

B. The Void-for-Vagueness Doctrine Does Not Apply to Nonpenal

Laws, and Even If It Did, Section 6(b) Is Not Vague. ..........................17

CONCLUSION ........................................................................................................21

CERTIFICATE OF SERVICE ................................................................................22

CERTIFICATE OF COMPLIANCE .......................................................................23

iii

TABLE OF AUTHORITIES

Cases

Bashaway v. Cheney Bros., Inc.,

987 So. 2d 93 (Fla. 1st DCA 2008) ....................................................................14

Brklacic v. Parrish,

149 So. 3d 85 (Fla. 4th DCA 2014) ........................................................... 4, 5, 20

Brown v. State,

629 So. 2d 841 (Fla. 1994) ..................................................................................18

Capital City Country Club, Inc. v. Tucker,

613 So. 2d 448 (Fla. 1993) ..................................................................................19

City of New Orleans v. Dukes,

427 U.S. 297 (1976) ............................................................................................15

City of W. Palm Beach v. Chatman,

112 So. 3d 723 (Fla. 4th DCA 2013) ..................................................................18

Comm’n on Ethics v. Barker,

677 So. 2d 254 (Fla. 1996) ..................................................................................20

Connally v. Gen. Constr. Co.,

269 U.S. 385 (1926) ............................................................................................18

Coy v. Fla. Birth-Related Neurological Injury Comp. Plan,

595 So. 2d 943 (Fla. 1992) ..................................................................................13

CTS Corp. v. Waldburger,

134 S. Ct. 2175 (2014) .......................................................................................... 8

DeQuervain v. Desguin,

927 So. 2d 232 (Fla. 2d DCA 2006) ...................................................................19

Duncan v. Moore,

754 So. 2d 708 (Fla. 2000) ........................................................................... 13, 14

iv

FCC v. Beach Commc’ns, Inc.,

508 U.S. 307 (1993) ............................................................................................15

Fla. Patient’s Comp. Fund v. Von Stetina,

474 So. 2d 783 (Fla. 1985) ..................................................................................15

Garcia v. Andonie,

101 So. 3d 339 (Fla. 2012) ................................................................................3, 6

Gates v. Foley,

247 So. 2d 40 (Fla. 1971) ....................................................................................14

Goin v. Comm’n on Ethics,

658 So. 2d 1131 (Fla. 1st DCA 1995) ................................................................20

Habie v. Krischer,

642 So. 2d 138 (Fla. 4th DCA 1994) ..................................................................20

Judd v. Schooley,

158 So. 2d 514 (Fla. 1963) .................................................................................... 7

Kerlin v. State, 351 So. 2d 1026, 1027 (Fla. 4th DCA 1976) ..................................13

Kolender v. Lawson,

461 U.S. 352 (1983) ............................................................................................18

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ..............................................................................11

McDonald v. State,

957 So. 2d 605 (Fla. 2007) ..................................................................................11

Mendenhall v. State,

48 So. 3d 740 (Fla. 2010) ....................................................................................11

Osterndorf v. Turner,

426 So. 2d 539 (Fla. 1982) ..................................................................................15

Palethorpe v. Thomson,

171 So. 2d 526 (Fla. 1965) .................................................................................... 9

v

Panama City Med. Diagnostic Ltd. v. Williams,

13 F.3d 1541 (11th Cir. 1994) ............................................................................15

Papachristou v. City of Jacksonville,

405 U.S. 156 (1972) ............................................................................................19

Posner v. Posner,

233 So. 2d 381 (Fla. 1970) ..................................................................................13

Simpson v. Merrill,

324 So. 2d 350 (Fla. 1970) .................................................................................... 9

State ex rel. Green v. City of Pensacola,

126 So. 2d 566 (Fla. 1961) .................................................................................... 9

State v. Conforti,

688 So. 2d 350 (Fla. 4th DCA 1997) ..................................................................19

State v. J.M.,

824 So. 2d 105 (Fla. 2002) ..................................................................................11

State v. Presidential Women’s Ctr.,

937 So. 2d 114 (Fla. 2006) ..................................................................................20

Steuart v. State ex rel. Dolcimascolo,

161 So. 378 (Fla. 1935) ......................................................................................... 9

The Fla. Bar v. Greene,

926 So. 2d 1195 (Fla. 2006) .................................................................................. 3

Tremblay v. Carter,

390 So. 2d 816 (Fla. 2d DCA 1980) ...................................................................14

Troy v. State,

948 So. 2d 635 (Fla. 2006) ..................................................................................13

Warren v. State Farm Mut. Auto. Ins. Co.,

899 So. 2d 1090 (Fla. 2005) ................................................................................14

Warren v. State,

572 So. 2d 1376 (Fla. 1991) ................................................................................19

vi

Wells v. Haldeos,

48 So. 3d 85 (Fla. 2d DCA 2010) ......................................................................... 7

Statutes

§ 732.102, Fla. Stat. .................................................................................................14

§ 768.21(2), Fla. Stat. ...............................................................................................14

Constitutional Provisions

Art. I, § 2, Fla. Const......................................................................................... 11, 12

Art. I, §9, Fla. Const.................................................................................................17

Art. VII, § 6(b), Fla. Const. ..................................................................................3, 12

Other Authorities

Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal

Texts 183-88 (2012) .............................................................................................12

Op. Att’y Gen. Fla. 2008-13 ...................................................................................... 5

1

STATEMENT OF THE CASE AND FACTS

In his answer brief, Appellee Gary R. Nikolits (“Property Appraiser”) has

accurately recited the facts and procedural history of this case. Therefore, in the

interest of judicial economy, this answer brief will rely on and incorporate the

Property Appraiser’s statement of the case and facts.

SUMMARY OF THE ARGUMENT

Under this Court’s precedent, Appellant’s intact marriage constitutes a

“family unit,” which the Florida Constitution limits to one homestead exemption.

There is no support in the case law for Appellant’s assertion that congenially

married persons may circumvent this limitation by forming separate, additional

family units, or by disclaiming the constitutional status of their relationship in a

prenuptial agreement. Moreover, Appellant’s far-reaching argument would gut the

homestead limitation of any meaningful effect, allowing persons to form an

unlimited number of family units and claim an unlimited number of exemptions.

And to the extent that this Court’s precedent leaves any room for finding an

ambiguity in the homestead limitation, the ambiguity must be resolved strictly

against allowing an exemption.

2

Appellant’s constitutional arguments, while directed nominally at Appellees’

“application” of the homestead limitation and homestead statutes in her case, are in

fact directed at the homestead limitation itself. These arguments fail for several

independent reasons. First, Appellant premises her equal-protection claim—and

partially premises her due-process claim—on the Florida Constitution. But a

constitution cannot violate itself, and to avoid any conflict that otherwise would

result, the more specific homestead limitation provision would govern over the

more general equal-protection and due-process provisions. The equal-protection

claim also fails because the homestead limitation, in distinguishing between intact

and estranged marriages, rationally relates to the legitimate purposes of guarding

against erosion of the tax base and ensuring that estranged spouses may enjoy the

benefits of an exemption. Furthermore, the due-process claim fails because the

void-for-vagueness doctrine is limited to penal laws, and Appellant has no life,

liberty, or property interest in being shielded from paying lawful taxes. Finally,

even if the void-for-vagueness doctrine could apply to limitations on tax

exemptions, the homestead limitation—as construed by this Court’s precedent—is

not vague.

3

ARGUMENT

Standard of Review

“A ruling on a motion for summary judgment is subject to de novo review.”

The Fla. Bar v. Greene, 926 So. 2d 1195, 1200 (Fla. 2006). “[S]ummary judgment

is appropriate where, as a matter of law, it is apparent from the pleadings,

depositions, affidavits, or other evidence that there is no genuine issue of material

fact and the moving party is entitled to relief as a matter of law.” Id. The trial

court’s ruling turned on an interpretation of the homestead limitation found in

Article VII, Section 6(b) of the Florida Constitution—a legal issue that this Court

reviews de novo. See Garcia v. Andonie, 101 So. 3d 339, 343 (Fla. 2012) (“The

determination of a statute’s constitutionality and the interpretation of a

constitutional provision are both questions of law reviewed de novo”).

I. UNDER THIS COURT’S PRECEDENT, A COUPLE IN AN “INTACT MARRIAGE”

IS A “FAMILY UNIT” AND THEREFORE CANNOT CLAIM MORE THAN ONE

HOMESTEAD EXEMPTION.

Article VII, Section 6(b) of the Florida Constitution provides that “[n]ot

more than one [homestead] exemption [from property taxation] shall be allowed

any individual or family unit or with respect to any residential unit.” Art. VII, §

6(b), Fla. Const. Interpreting this provision, this Court has squarely held that a

couple in an “intact marriage” constitutes a “family unit” entitled to only one

4

homestead exemption under Section 6(b). Brklacic v. Parrish, 149 So. 3d 85, 88-

89 (Fla. 4th DCA 2014). Appellant resides with her husband on his homestead

property, and there is no dispute that they have an intact marriage as Brklacic

defined the term. Nonetheless, despite this Court’s holding in Brklacic, Appellant

asserts that she should be entitled to claim an additional exemption for a separate

property that she owns and upon which her adult daughter resides. Appellant’s far-

reaching and unsupported argument would undermine Section 6(b)’s purpose by

allowing individuals to form any number of “family units” and thereby benefit

from multiple homestead exemptions. This Court should affirm by applying its

well-reasoned precedent in Brklacic.

In Brklacic, this Court considered an appeal by a husband who wished to

continue claiming a homestead exemption for his residence after marrying his

wife, who continued to maintain her own separate homestead residence in another

county. 149 So. 3d at 86. Pointing to their separate permanent residences and

financial arrangements, the husband argued that he and his wife had established

separate family units and thus were entitled to claim separate exemptions. Id. at 87.

This Court disagreed, holding that two spouses constitute “a single ‘family unit’

entitled to one homestead tax exemption” where they “live together at different

periods of time, support each other in some financial or emotional way, and/or

5

present themselves as a married couple (as opposed to estranged individuals who

are just technically still married).” Id. at 88-89.

Although the spouses in Brklacic resided on their separate properties and no

children resided on either property, these facts were not material to this Court’s

holding. Indeed, this Court framed the issue only by reference to the spouses’

relationship with one another, asking whether “Appellant and his wife constituted

one family unit and were thus limited to one homestead exemption.” Id. at 87

(emphases in original). In answering this question, this Court cited with approval

advisory opinions from the Attorney General that “consistently emphasize that

married individuals can obtain separate exemptions only when they have

established separate permanent residences and separate family units.” Id. at 88

(emphases in original). In particular, this Court relied on AG Opinion 2008-13,

which analyzed facts materially indistinguishable from those involved in this

appeal and concluded that a wife who resided with her husband on homestead

property could not claim a separate exemption for a residence that she maintained

as the permanent residence of an adult child, who depended on her for

support. Id.; see Op. Att’y Gen. Fla. 2008-13. In other words, the wife and husband

formed a family unit entitled only to one homestead exemption, and the wife could

6

not claim to have established a separate family unit with her adult child and claim

an additional exemption for the property on which her child lived.

Presenting facts nearly identical to those analyzed in AG Opinion 2008-13,

Appellant argues that this Court should decline to apply Brklacic because she and

her daughter form a second “family unit” separate and apart from the family unit

that she has established with her husband. Appellant also appears to argue that a

couple in an intact marriage can contractually disclaim their constitutional status as

a family unit by executing a prenuptial agreement. Neither of these contentions is

persuasive, and neither finds any support in the authorities that Appellant cites.

Appellant principally cites three cases in support of her arguments. First,

Appellant relies on Garcia v. Andonie, 101 So. 3d 339 (Fla. 2012). Andonie

addressed the ability of property owners to claim a homestead exemption for

property upon which their dependents permanently reside, but it expressly

recognized that Section 6(b) “limits the number of exemptions that can be obtained

by an individual or a family unit.” Id. at 344 n.6 (emphasis added). The court

further stated that “[t]he legal issues we discuss in this opinion [] do not touch

upon this limitation.”Id. Thus, on its own terms, Andonie has no bearing on the

interpretation of Section 6(b).

7

Appellant next misplaces reliance on Wells v. Haldeos, 48 So. 3d 85 (Fla. 2d

DCA 2010). In Haldeos, the Second District Court of Appeal held that a husband

separated and estranged from his wife was entitled to claim his own homestead

exemption because they no longer constituted a single family unit. Id. at 88. This

does not describe Appellant’s marriage. There is no dispute that Appellant resides

with her husband and that they have an intact marriage.

The third case that Appellant cites for support is Judd v. Schooley, 158 So.

2d 514 (Fla. 1963), which was decided before the 1968 constitutional revision that

adopted Section 6(b) and is therefore immaterial to its interpretation. Moreover,

Judd is entirely inapplicable. In Judd, the Florida Supreme Court rejected “the

common-law fiction that by marriage a woman’s identity is absorbed into that of

her husband,” id. at 516, holding that a married woman could claim a homestead

exemption for her Florida residence when her husband permanently resided out-of-

state. Id. at 517. Judd has no applicability here, where Appellant’s spouse does not

reside out-of-state and in fact claims a homestead exemption in Florida. In any

event, Section 6(b) is not premised on the common-law fiction that the Judd court

rejected. Rather, it is a gender-neutral provision that recognizes the support and

benefits that the marital relationship affords to both spouses.

8

Having failed to point this Court to any case law supporting her

interpretation, Appellant is left to grasp at the broad purpose that she perceives

behind Florida’s homestead: “preserving a home where the family may be

sheltered and live beyond the reach of economic misfortune.” Initial Br. at 10. This

may be true so far as it goes, but by receiving the care and support inherent in an

intact marriage, Appellant has received the benefit of her husband’s homestead

exemption. Appellant of course argues that her family, in a broader sense, would

benefit all the more from an additional exemption, but no law—constitutional or

otherwise—“pursues its purposes at all costs.” CTS Corp. v. Waldburger, 134 S.

Ct. 2175, 2185 (2014) (internal quotation marks omitted).

More importantly, while preserving a home for the family is indeed a

purpose of the Florida Constitution’s homestead protections, such is not the

purpose of Section 6(b). Section 6(b) is unambiguously a limitation on the

homestead right, the purpose of which is to guard against erosion of the tax base.

Interpreting Section 6(b) to allow congenially married persons to form multiple

“family units” (or to contractually disclaim the constitutional status of the marriage

as a family unit), and to claim multiple additional exemptions, would thwart the

limiting purpose of Section 6(b). If a person in an intact marriage can claim

additional exemptions for properties on which dependent parents, siblings, adult

9

children, or cousins reside, then Section 6(b) loses nearly all of its limiting force.

Appellant offers no limiting principle for her far-reaching and novel interpretation

of Section 6(b).

Finally, to the extent that Appellant argues there remains an ambiguity in

Section 6(b) even after this Court’s decision in Brklacic, this Court must resolve

any ambiguity against her. A long line of authority holds that tax exemptions,

whether they appear in a statute or in the Florida Constitution itself, “must be

construed strictly against the exemption.” Palethorpe v. Thomson, 171 So. 2d 526,

532 (Fla. 1965), overruled in part on other grounds by Simpson v. Merrill, 324 So.

2d 350 (Fla. 1970); see also State ex rel. Green v. City of Pensacola, 126 So. 2d

566, 569 (Fla. 1961) (“The rule that a purported grant of a tax exemption is to be

strictly construed against the claimant and in favor of the taxing authority is widely

recognized in this and other jurisdictions.”). As the Florida Supreme Court stated

eighty years ago, a claim for a homestead exemption will not be recognized unless

it is “sustainable under the precise language of [the Constitution], which language

no department of the state government . . . has authority to amend, add to, detract

from, or alter, in favor of or against claimants not strictly entitled, or debarred,

under the words of the Constitution itself.” Steuart v. State ex rel. Dolcimascolo,

161 So. 378, 379 (Fla. 1935). If Brklacic left untouched any arguable ambiguity in

10

Section 6(b) as to whether a congenially married person can circumvent the

constitutional limitation by forming multiple family units or by contractually

disclaiming the constitutional status of the marriage, the ambiguity must be

resolved strictly against Appellant.

Appellant does not and cannot dispute that she and her husband comprise a

family unit because their marriage is intact. Under Brklacic, that is the only fact

that matters. Therefore, there is no genuinely disputed material fact, and Appellees

were entitled to judgment as a matter of law.

II. IN LIMITING FAMILY UNITS TO ONE HOMESTEAD EXEMPTION, THE

FLORIDA CONSTITUTION DOES NOT RAISE ANY EQUAL PROTECTION OR

DUE PROCESS PROBLEM.

Because Appellant misinterprets Section 6(b), she incorrectly frames the

constitutional arguments that she advances. See Initial Br. at 26. As established by

earlier discussion in this brief, Appellant and her husband constitute a “family

unit” such that Section 6(b) precludes her from claiming additional exemptions.

Therefore, this case does not present a challenge to the validity of an implementing

statute, or to the actions of Appellees in denying Appellant’s exemption request

and levying taxes on her property. Rather, Appellant mounts a constitutional attack

against Section 6(b) of the Florida Constitution itself. For the reasons explained

below, this attack cannot succeed.

11

A. The Florida Constitution Cannot Violate Itself, and in Any Event,

Section 6(b) Is Consistent with Equal Protection Principles.

Appellant first contends that Section 6(b) violates the Florida Constitution’s

equal protection guarantee. See Art. I, § 2, Fla. Const. This contention fails for

three independent reasons.

First, while it is possible for a state constitution to violate the federal

Constitution, see U.S. Const. art. VI, cl. 2, a constitution cannot “violate” itself,

and constitutions must be construed—if at all possible—to be internally consistent

and to give effect to all of their provisions. See Marbury v. Madison, 5 U.S. (1

Cranch) 137, 174 (1803). Appellant cites no precedent holding that the limitation

of one homestead exemption per family unit violates the equal protection provision

of the Florida Constitution. In fact, under existing precedent, the equal protection

provision can (and should) be read to stand in harmony with Section 6(b).

Second, even assuming arguendo that the equal protection and homestead

limitation provisions would otherwise stand in irreconcilable conflict, the

homestead limitation should be given effect as the more specific provision. See

Mendenhall v. State, 48 So. 3d 740, 748 (Fla. 2010); McDonald v. State, 957 So.

2d 605, 610 (Fla. 2007); State v. J.M., 824 So. 2d 105, 112 (Fla. 2002); see also

Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal

12

Texts 183-88 (2012) (explaining and illustrating the general–specific canon). The

equal protection provision provides a general guarantee that:

All natural persons, female and male alike, are equal before the law

and have inalienable rights, among which are the right to enjoy and

defend life and liberty, to pursue happiness, to be rewarded for

industry, and to acquire, possess and protect property . . . . No person

shall be deprived of any right because of race, religion, national

origin, or physical disability.

Art. I, § 2, Fla. Const. In contrast, Section 6(b) specifically declares that “[n]ot

more than one [homestead] exemption [from taxation] shall be allowed any

individual or family unit . . . .” Art. VII, § 6(b), Fla. Const. Assuming arguendo

that the two provisions would otherwise conflict, effect should be given to Section

6(b) because it speaks more directly to the case at hand. See Mendenhall, 48 So. 3d

at 748 (applying the statute that “specifically addresses [the] situation” at issue in

the case); see also Scalia & Garner at 183 (explaining that the specific provision

governs over the general one in the event of a conflict because “the specific

provision comes closer to addressing the very problem posed by the case at hand

and is thus more deserving of credence”).

Third, there is no conflict—Section 6(b) is entirely consistent with equal

protection principles. Appellant objects to Section 6(b), as authoritatively

construed by this Court in Brklacic, on the ground that it distinguishes between

persons who are in an intact marriage and persons who are in an estranged

13

marriage. However, this distinction rationally relates to the legitimate state

purposes of guarding against erosion of the state’s tax base and providing a

homestead right to those who cannot otherwise effectively enjoy one due to a

broken marriage.

“‘Equal protection is not violated merely because some persons are treated

differently than other persons. It only requires that persons similarly situated be

treated similarly.’” Troy v. State, 948 So. 2d 635, 645 (Fla. 2006) (quoting Duncan

v. Moore, 754 So. 2d 708, 712 (Fla. 2000)). “In the absence of a fundamental right

or a protected class, equal protection demands only that a distinction which results

in unequal treatment bear some rational relationship to a legitimate state purpose.”

Duncan, 754 So. 2d at 712.

Persons in an intact marriage are not a suspect class because they have not

“been the traditional target of irrational, unfair, and unlawful discrimination.” Coy

v. Fla. Birth-Related Neurological Injury Comp. Plan, 595 So. 2d 943, 945 (Fla.

1992) (defining “suspect class”). To the contrary, the Florida Supreme Court

reveres marriage “as a social institution that is the foundation of the family and of

society,” Posner v. Posner, 233 So. 2d 381, 382 (Fla. 1970)—an institution that

this Court has recognized as “sacred.” Kerlin v. State, 351 So. 2d 1026, 1027 (Fla.

4th DCA 1976) (internal quotation marks omitted). Indeed, rather than

14

discriminate against them, the law historically has afforded benefits to married

couples that it denies to others. For example, while spouses may recover for loss of

consortium, unmarried cohabitants cannot. See Bashaway v. Cheney Bros., Inc.,

987 So. 2d 93, 94-96 (Fla. 1st DCA 2008); Tremblay v. Carter, 390 So. 2d 816,

818 (Fla. 2d DCA 1980); cf. Gates v. Foley, 247 So. 2d 40, 45 (Fla. 1971)

(recognizing the right of a spouse to claim loss of consortium against her spouse’s

tortfeasor, and holding that the right of action for loss of consortium “is a

derivative right”). Intestate succession statutes heavily prioritize surviving spouses.

See, e.g., § 732.102, Fla. Stat. Furthermore, surviving spouses are uniquely entitled

to claim certain damages when bringing a wrongful death claim. See, e.g.,

§ 768.21(2), Fla. Stat. In view of this consistent preferential treatment for

marriages, classifications based on the marital relationship are not suspect, and

courts should review them for rational basis. See Duncan, 754 So. 2d at 712.

Rational-basis review is extraordinarily deferential. When reviewing a

challenged classification for rational basis, courts must ask “(1) whether the

challenged [classification] serves a legitimate governmental purpose, and (2)

whether it was reasonable for the [promulgating authority] to believe that the

challenged classification would promote that purpose.” Warren v. State Farm Mut.

Auto. Ins. Co., 899 So. 2d 1090, 1095 (Fla. 2005). The inquiry is not whether a

15

legitimate purpose actually motivated the challenged provision. Instead, courts ask

only whether a conceivable legitimate purpose could have motivated the provision.

See FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993) (noting that because

a legislature need not “articulate its reasons for enacting a statute, it is entirely

irrelevant for constitutional purposes whether the conceived reason for the

challenged distinction actually motivated the legislature”); Panama City Med.

Diagnostic Ltd. v. Williams, 13 F.3d 1541, 1546 (11th Cir. 1994) (“[I]n evaluating

the rational basis for a statute, it is entirely permissible to rely on rationales that

were not contemplated by the legislature at the time of the statute’s passage.”); see

also Osterndorf v. Turner, 426 So. 2d 539, 543 (Fla. 1982) (noting that federal

cases are “relevant and persuasive to the consideration of whether Florida’s equal

protection clause has been violated”). As the Florida Supreme Court has cautioned:

We strongly adhere to the view that ‘the judiciary may not sit as a

superlegislature to judge the wisdom or desirability of legislative

policy determinations made in areas that neither affect fundamental

rights nor proceed along suspect lines.’ So long as the legislative

measure is rationally related to legitimate state interests, we must not

substitute our judgment for that of the legislature with respect to the

need for, or wisdom of, a legislative enactment.

Fla. Patient’s Comp. Fund v. Von Stetina, 474 So. 2d 783, 789 (Fla. 1985) (citation

omitted) (quoting City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976)).

16

By distinguishing between intact and estranged marriages, Section 6(b)

serves two legitimate purposes. First, the distinction guards against the significant

erosion of the state’s tax base that would occur if married persons supporting each

other as one family unit could form multiple additional “family units” and claim

multiple additional tax exemptions. Second, by recognizing the fact that an

estranged spouse cannot enjoy the benefits of the other spouse’s exemption, the

distinction provides a homestead right to those who cannot otherwise effectively

enjoy one. Couples in an intact marriage, by definition, enjoy financial benefits

from the permanency of their relationship and their sharing of resources. Because

of the nature of their mutually supportive relationship, a person in an intact

marriage reaps the benefit of his spouse’s homestead exemption, regardless of who

owns legal title to the property. However, this is not the case for persons in an

estranged marriage. In an estranged marriage, economic benefits are not shared,

and the spouses do not support each other. Thus, by distinguishing between intact

and estranged marriages, the Florida Constitution ensures that citizens’ enjoyment

of the homestead exemption right is tied to economic realities, rather than formal

legal labels.

17

In sum, the Florida Constitution cannot violate itself, and in any event, there

are rational bases for its distinction between intact and estranged marriages for

purposes of limiting each “family unit” to one homestead exemption.

B. The Void-for-Vagueness Doctrine Does Not Apply to Nonpenal

Laws, and Even If It Did, Section 6(b) Is Not Vague.

Next, Appellant cursorily argues that Section 6(b) violates due process

guarantees under the “void-for-vagueness” doctrine. To the extent that her due-

process claim is founded in Article I, Section 9 of the Florida Constitution, it fails

for similar reasons that her equal-protection claim fails: a constitution cannot

violate itself, and the specific homestead limitation provision should govern over

the general due process one. Moreover, regardless of whether Appellant bases her

due-process claim in the state or federal constitution, it fails for two additional

reasons: Appellant has no property interest in avoiding a lawful tax, and even if she

did, the homestead limitation—as construed in this Court’s precedent—is not

vague.

Both the Florida and federal constitutions require “due process” before the

state may deprive a person “of life, liberty[,] or property.” Art. I, §9, Fla. Const.;

U.S. Const. amend. 14. As Appellant notes, federal and state courts have

developed a “void-for-vagueness” doctrine, under which laws may be found to

violate due process guarantees on account of vagueness. Appellant fails to note,

18

however, that virtually all of these decisions have been confined to the invalidation

of penal statutes and ordinances. See Kolender v. Lawson, 461 U.S. 352, 357

(1983) (“[T]he void-for-vagueness doctrine requires that a penal statute define the

criminal offense with sufficient definiteness that ordinary people can understand

what conduct is prohibited and in a manner that does not encourage arbitrary and

discriminatory enforcement.”) (emphases added); see also, e.g., Brown v. State,

629 So. 2d 841 (Fla. 1994) (invalidating sentence enhancement for drug offenses

that occur within 200 feet of a “public housing facility”); Connally v. Gen. Constr.

Co., 269 U.S. 385 (1926) (invalidating penal statute that required certain

employers to pay wages “not less than the current rate of per diem wages in the

locality where the work is performed”); City of W. Palm Beach v. Chatman, 112

So. 3d 723 (Fla. 4th DCA 2013) (invalidating municipal ordinance that

criminalized “loitering with intent to commit prostitution”). This is because vague

penal laws place a person’s life, liberty, or property in jeopardy by failing to give

clear notice of what conduct is punishable and by failing to constrain law

enforcement discretion with minimal enforcement guidelines. Lawson, 461 U.S. at

357-58. Vague nonpenal laws, on the other hand, do not suffer from either of these

pitfalls.

19

Appellant cites no authority—and the Department is aware of none—for the

proposition that an ambiguous tax exemption violates due process guarantees. In

fact, ambiguities in tax exemptions are resolved against the taxpayer. See Capital

City Country Club, Inc. v. Tucker, 613 So. 2d 448, 452 (Fla. 1993); see also, e.g.,

DeQuervain v. Desguin, 927 So. 2d 232, 236 (Fla. 2d DCA 2006). Appellant has

no property interest in avoiding lawful taxes, because “all property is subject to

taxation unless expressly exempt.” Tucker, 613 So. 2d at 452. Therefore, an

ambiguous limitation on a tax exemption does not run afoul of due process

guarantees, and the void-for-vagueness doctrine does not apply.

Furthermore, even assuming arguendo that the void-for-vagueness doctrine

could apply to nonpenal laws, Section 6(b) is not vague. A law is void for

vagueness “if it ‘does not give people of ordinary intelligence fair notice of what

constitutes forbidden conduct.’” State v. Conforti, 688 So. 2d 350, 356 (Fla. 4th

DCA 1997) (quoting Warren v. State, 572 So. 2d 1376, 1377 (Fla. 1991)) (citing

Papachristou v. City of Jacksonville, 405 U.S. 156 (1972)). This “fair notice”

standard is a low bar for laws to surmount, and the mere fact that a law requires

interpretation does not render it impermissibly vague. For example, in numerous

cases, statutes employing a reasonableness standard have been upheld against void-

for-vagueness challenges. See, e.g., State v. Presidential Women’s Ctr., 937 So. 2d

20

114, 118-20 (Fla. 2006); Comm’n on Ethics v. Barker, 677 So. 2d 254, 255-56

(Fla. 1996); Goin v. Comm’n on Ethics, 658 So. 2d 1131, 1135 (Fla. 1st DCA

1995); Habie v. Krischer, 642 So. 2d 138, 140-42 (Fla. 4th DCA 1994).

Appellant fails to explain how the term “family unit” is so vague that

Section 6(b) must be declared void. Moreover, a law is not vague if it has been

given a reasonable, clarifying judicial interpretation. See Presidential Women’s

Ctr., 937 So. 2d at 120 (upholding a statute after giving it a clarifying

interpretation, and holding that the statute, “when its terms are construed in the

manner we have described, is not so vague that men of common intelligence must

necessarily guess at its meaning”) (emphasis added) (internal quotation marks

omitted). To the extent that there is any ambiguity in the term “family unit,” this

Court’s precedent has reasonably clarified it so persons of common intelligence

need not guess as to its meaning. Under Brklacic, this Court has interpreted

“family unit” to mean an intact marriage, and has given further interpretive

guidance as to what constitutes an intact marriage. 149 So. 3d at 88-89. With this

clarifying interpretation, Section 6(b) cannot possibly be vague. It certainly cannot

be so vague that ordinary persons must guess as to its meaning.

21

CONCLUSION

For the foregoing reasons, this Court should affirm the trial court’s summary

judgment in favor of Appellees.

Respectfully submitted,

PAMELA JO BONDI

ATTORNEY GENERAL

/s/ Jordan E. Pratt

JORDAN E. PRATT (FBN 100958)

Deputy Solicitor General

JEFFREY DIKMAN (FBN 274224)

Senior Assistant Attorney General

Office of the Attorney General

The Capitol, PL-01

Tallahassee, Florida 32399-1050

(850) 414-3300

(850) 410-2672 (fax)

jordan.pratt@myfloridalegal.com

jeffrey.dikman@myfloridalegal.com

Counsel for Appellee Marshall Stranburg

22

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing has been furnished this 21st

day of January, 2016, by electronic mail to:

Richard P. McCusker, Jr.

922 S.E. 4th

Avenue

Delray Beach, FL 33483-3415

rrmccusker@aol.com

Jeffrey M. Clyman

Palm Beach County Property Appraiser’s Office

301 N. Olive Avenue

5th

Floor

West Palm Beach, FL 33401-4700

jclyman@pbcgov.org

Orfelia M. Mayor

Palm Beach County Tax Collector’s Office

301 N. Olive Avenue

3rd

Floor

West Palm Beach, FL 33401-4700

omayor@pbctax.com

/s/ Jordan E. Pratt

Attorney

23

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief was prepared in Times New Roman, 14-point

font, in compliance with rule 9.210(a)(2) of the Florida Rules of Appellate

Procedure.

/s/ Jordan E. Pratt

Attorney