02-004723RP Elizabeth Green vs. Department Of Corrections Status: Closed DOAH Final Order on Friday, May 23, 2003.

Summary: Motion to Dismiss or for Summary Final Order is granted where the subject Petition for Determination of a Proposed Rule is improper and untimely.

Case No. 02-4723RP

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELIZABETH GREEN, ) ) ) ) ) ) ) ) ) )

Petitioner, ORDER

vs.

DEPARTMENT OF CORRECTIONS,

Respondent.

This cause comes before the undersigned on a Motion to

Dismiss filed by the Respondent February 6, 2003, which the

Respondent, by unopposed motion requested that the undersigned

treat as a Motion for Summary Final Order on the issue of

standing. That request was granted by the Order of the

undersigned entered February 12, 2003.

On or about December 4, 2002, the Petitioner filed a

"Petition to Determine the Invalidity of a Proposed Rule" of the

Department of Corrections.

The Petitioner asserts standing to contest rules proposed by

the Department of Corrections (Department) involving inmate mail

in her capacities as (1) a "duly authorized power of attorney"

for an unnamed prisoner in the custody of Department of

Corrections and (2) the "Official record custodian" for an

unnamed prisoner in the custody of the Department of Corrections.

The Petitioner does not assert standing other than that derived

from the power of attorney.

Rules 33-210.101 (regulating routine mail), 33-210.102

(regulating legal mail) and 33-210.103 (regulating privileged

mail), were certified and adopted on November 14, 2002, and

became effective on December 4, 2002. See Volume 28, Number 48

FAW 5415 (November 27, 2002).

It is well settled that a threshold determination of

standing is necessary in rule challenges. See John H. Phipps

Broadcasting Stations, Inc., v. Florida Department of

Environmental Regulation , DOAH Case No. 79-216RP (Final Order

February 15, 1980). ("Thus in any rule challenge a necessary

forerunner to the determination of the invalidity or validity of

a proposed rule is the determination of standing on behalf of the

Petitioner challenging the proposed rule.")

Section 120.56(1), Florida Statutes, provides that "any

person substantially affected by an agency statement may seek

administrative determination" that the statement violates Section

120.54(1)(a), Florida Statutes.

Not everyone having an interest in a dispute over an

agency's rule that determines the rights and interests of others

has standing.

Were that not so, each interested citizen

could, merely by expressing an interest,

participate in the agency's efforts to

govern, a result that would unquestionably

impede the ability of the agency to function

efficiently and inevitably cause an increase

in the number of litigated disputes well

above the number administrative and appellate

judges are capable of handling. Therefore,

the legislature must define and the courts

must enforce certain limits on the public's

right to participate in administrative

proceedings.

Florida Society of Ophthalmology v. State of Florida, Board of

Optometry , 532 So. 2d 1279, 1284 (Fla. 1st DCA 1988).

In order to comply with standing requirements, a petition

must meet a two pronged test. First the petition must show "a

real and immediate effect upon one's case as well as injury in

fact;" and it must be shown that the injury asserted falls

"within the zone of interest to be protected or regulated." See

All Risk Corporation of Florida v. State , 413 So. 2d 1200 (Fla.

1st DCA 1982).

Inmates may send and receive mail only under such conditions

as prescribed by the Department under Section 944.09, Florida

Statutes. The Department has specific authority to adopt rules

regulating mail moving into and out of its facilities pursuant to

Section 944.09(1)(g), Florida Statutes.

It is the right of the inmate to send and receive mail that

is here regulated, not the right of the Petitioner to send or

receive mail. Even if the Petitioner did claim standing outside

of her status as an attorney in fact, she would fail, because it

is not her right to send and receive mail that is being

regulated, rather it is that of the inmate. Burns v. Department

of Corrections , DOAH Case 97-4538RP. (Wife's interest in

visiting her spouse in prison; it was the inmate's privilege to

receive visitors that was being regulated.)

The only possible basis for standing in this Petitioner to

bring this action is that derived from the unnamed prisoner

through the power of attorney. A power of attorney is a written

instrument by which one person, as principal, appoints another as

his agent and confers upon him the authority to perform certain

specified acts or kinds of acts on behalf of that principal.

Any attorney in fact stands in the shoes of the principal

and possess the same rights and limitation of rights as does the

principal.

The rights of a prisoner vis-a-vis the Department rules are

limited by statute to those rights addressed in Section

120.54(3)(c) (submission of materials pertinent to the issues

within 21 days of the publication of the notice or at a public

hearing), and Section 120.54(7), (petition to initiate rule

making). See Section 120.81(3)(b), Florida Statutes.

Under Florida law, prisoners do not have a right to file a

rule challenge pursuant to Section 120.56, Florida Statutes. See

Section 120.81(3)(b), Florida Statues.

Participation in these proceedings by an inmate is not

permitted by statute and therefore no attorney in fact, whose

standing to participate is derivative and limited only to the

right of the unnamed inmate, has standing.

The Petitioner is attempting a derivative action to assert a

Section 120.56(4) rule challenge by an unnamed prisoner to a

proposed rule. That action is not authorized by law and this

tribunal has no jurisdiction to entertain that petition.

In his Final Order entered December 8, 1997, in

Teresa Burns v. Department of Corrections , DOAH 97-4538RP, Judge

Arrington endorsed Judge James W. York's observation from Florida

Prisoner's Legal Aid Organization, Inc., and Teresa Burns v.

Department of Corrections , DOAH Case No. 96-2943RX, that the

legislature's intent in Section 120.81(3), Florida Statutes,

should not be eroded by allowing non-prisoner parties to litigate

in the place of a prisoner and quoted him as follows:

However, there are a myriad of circumstances

in which the direct regulation of prisoners

in the custody of the Department might

indirectly affect petitioners. The

geographic assignment of prisoners,

visitation times, disciplinary actions for

prisoner infractions, even personal property

prisoners are permitted to possess are issues

that might indirectly affect the relatives of

inmates. However, the legislature has

clearly defined limits on standing to

challenge the DOC rules regarding the

regulation of prisoners and to permit such

challenges in the manner petitioners seek to

do would circumvent this legislative intent.

The petition and amended petition herein is thus an improper

attempt to circumvent Section 120.81(3), Florida Statutes, that

states that prisoners are considered parties only under Section

120.54(3)(c) or (7), Florida Statutes. The Petitioner seeks a

derivative action to assert a challenge by prisoners to the

rules. The Petitioner's only interest is that of a "stand in"

for prisoners. This is not lawful. See Department of

Corrections v. Van Poyk , 610 So. 2d 1333 (Fla. 1st DCA 1992).

The subject petition is also not timely. The petition was

filed after the adoption of the subject rule and

contemporaneously with its effective date, having been filed with

the Division of Administrative Hearings on December 4, 2002. The

petition is thus untimely as the rule became effective on the

same day and was no longer a proposed rule, even if the

Petitioner herein had standing to bring the Petition.

Accordingly, being advised in the premises, it is

ORDERED

That the Motion to Dismiss or for Summary Final Order be and the

same is hereby granted and the Petition and Amended Petition

filed by Elizabeth Green is hereby dismissed.

DONE AND ORDERED this 23rd day of May, 2003, in Tallahassee,

Leon County, Florida.

___________________________________

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of May, 2003.

COPIES FURNISHED :

Barbara Rockhill Edwards, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Elizabeth Green

01809 Springlake Road

Fruitland Park, Florida 34731-5243