IN THE CIRCUIT COURT OF THE 
NINTH JUDICIAL CIRCUIT IN AND 
FOR ORANGE COUNTY, FLORIDA
CASE NO: CL 97-10228 Div. 34

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MARY BARLEY, as Personal
Representative of the Estate
Of GEORGE M. BARLEY, JR.,
SHEILA MULLINS, BENJAMIN
WERMEIL, and NATHANIEL
PRYOR REED, both individually
And on behalf of others
Similarly situated,

Plaintiffs,

VS.

SOUTH FLORIDA WATER
MANAGEMENT DISTRICT,

Defendant.

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                                                           MOTION TO DISMISS

    The Defendant, SOUTH FLORIDA WATER MANAGEMENT DISTRICT

("SFWMD"), by and through its undersigned attorney, pursuant to rule 1.140(b) of the Florida Rules of Civil Procedure, moves for dismissal of the above-styled cause, and states:

    1. Plaintiffs filed the complaint in the above-styled action, alleging a class action pursuant to Article V §20(c)(3), in that this case involves the legality of a tax assessment' (Complaint, para. 9), Fla. Stat. §26.012(2)(e) and, the declaratory judgment act.

    2. This Court lacks subject matter jurisdiction since the Plaintiffs' claims are barred. Fla. Stat. §§ 194.171(3), (6). Plaintiffs fail to allege the necessary jurisdictional prerequisites to the filing of a complaint relating to a challenge of a tax assessment; in particular, they fail to allege payment of the tax which the taxpayer admits in good faith to be owing; and, fail to attach a receipt indicating payment. See Hall v. Leesburg Regional Medical Center, 651 So.2d 231 (Fla. 5th DCA 1995). The jurisdictional requirements of Florida Statutes Chapter 194 for payment of the uncontested tax amount and attachment of the payment receipt to the complaint apply to any form of action by which a taxpayer may contest the legality of a tax assessment. See State Dept. of Revenue v. Ray Const., 667 So.2d 859 (Fla. lst DCA 1996).

    3. In addition, Plaintiffs fail to state a cause of action since Amendment 5 is not self executing; legislative enactment is needed to delineate "a rule by means of which the right or purpose which it gives or is intended to accomplish may be determined, enjoyed, or protected." Gray v. Bryant, 125 So.2d 846, 851 (Fla. 1960). The recent Supreme Court Advisory Opinion quoted by Plaintiffs in their Complaint confirms this analysis. In re Advisory Opinion to the Governor, 22 Fla. L. Weekly S728 (Fla. Nov. 26, 1997) ("Amendment 5 is not self-executing and cannot be implemented without the aid of legislative enactment because it fails to lay down a sufficient rule for accomplishing its purpose.") Therefore, no cause of action exists since Amendment 5 is not self-executing and is not effective or operative "until enabling statutes are duly enacted." City of Winter Haven v. A.M. Klemm & Son, 181 So. 153, 159 (Fla. 1938); Gray v. Bryant, 125 So.2d 846, 851 (Fla. 1960) (a constitutional provision which is not self-executing requires "legislative action to activate the effects of its provisions...."; In to the Governor, 22 Fla. L. Weekly S728 (Fla. Nov. 26, 1997)("the voters expected the legislature to enact supplementary legislation to make it effective, to carry out its intended purposes, and to define any rights intended to be determined, enjoyed, or protect.,,) (emphasis added). As such, the funding program for the Everglades Construction Project and §373.4592(8)(a), Fla. Stat. do not violate Amendment 5 of the Florida Constitution because Amendment 5 is not yet activated by legislative action.

    4. Plaintiffs also lack standing to bring a declaratory judgment action since without enabling legislation, no rights are presently defined. May v. Holley, 59 So.2d 636 (Fla. 1952). Florida recognizes a general standing requirement in the sense that every case must involve a real controversy as to the issue or issues presented. See Interlachen Lakes Estates, Inc. v. Brooks, 341 So.2d 993 (Fla.1976). There can be no real controversy without defined rights. See May v. Holley, 59 So.2d 636 (Fla. 1952).

 

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the above was furnished by U.S. Mail to E. Thom Rumberger, Esq., and Richard A. Keller, Esq., Rumberger, Kirk & Caldwell, P.A., Signature Plaza, Suite 300, 201 South Orange Avenue, P.O. Box 1873, Orlando, FL 32802; and Jon Mills, Esq., P.O. Box 2099, Gainesville, FL 32602 this 23rd day of December, 1997.

 

BARBARA A. MARKHAM, ESQ.
Florida Bar No. 968500
General Counsel
South Florida Water Management District

By: _______________________

RUTH P. CLEMENTS, ESQ.
Florida Bar No. 813389
Attorney for Defendants
South Florida Water Management District
3301 Gun Club Road
Post Office Box 24680
West Palm Beach, FL 33146-4680
Telephone: (561)687-6271
Facsimile: (561)6870-6276