Section 922.105, Florida Statutes, violates the Separation of Powers clause of the Florida Constitution

The legislature’s explicit

exemption of the policies and protocols from the procedural

safeguards of the Administrative Procedure Act gave the

Department of Corrections unfettered discretion to legislate, in

violation of Article II, section 3 of the Florida Constitution.

Sims v. State, 754 So. 2d 657 (Fla. 2000).

Section 922.105, Florida Statutes, violates the Separation

of Powers clause of the Florida Constitution

because it

delegates to the DOC the complete power to create policies and

procedures for lethal injection and exempts the making of such

policies and procedures from the requirements of Chapter 120,

Laws of Florida, Florida’s Administrative Procedure Act (APA).

Absent the statutory exemption, the DOC policies and procedures

would fall under the definition of a “Rule” under the APA. §

120.52(15), Fla. Stat. (2006).22 They would thus be subject to

22 Section 120.52, Florida Statutes, defines “Rule”:

(15) "Rule" means each agency statement of

general applicability that implements, interprets, or

prescribes law or policy or describes the procedure or

practice requirements of an agency and includes any

form which imposes any requirement or solicits any

information not specifically required by statute or by

an existing rule. The term also includes the amendment

or repeal of a rule.

The term does not include:

(a)Internal management memoranda which do not affect

either the private interests of any person or any plan

or procedure important to the public and which have no

application outside the agency issuing the memorandum.

(b) Legal memoranda or opinions issued to an

agency by the Attorney General or agency legal

opinions prior to their use in connection with an

agency action.

(c) The preparation or modification of:

1. Agency budgets.

2. Statements, memoranda, or instructions to

state agencies issued by the Chief Financial Officer

or Comptroller as chief fiscal officer of the state

and relating or pertaining to claims for payment

submitted by state agencies to the Chief Financial

Officer or Comptroller.

3. Contractual provisions reached as a result

of collective bargaining.

4. Memoranda issued by the Executive Office of

the Governor relating to information resources

management.

formal or informal rulemaking requirements of the APA, including

notice, comments/ and or a hearing, and a complete rulemaking

record. See § 120.54, Fla. Stat. (2006). The rulemaking

procedures of the APA are designed to ensure that an agency is

informed to its fullest before making a rule on a particular

subject. See Adam Smith Enterprises, Inc. v. State Dep't of

Environmental Regulation, 553 So. 2d 1260, 1270 (Fla. Dist. Ct.

App. 1989).