Looking glass law: Legislation by reference in the states

Louisiana Law Review

Volumn 68, Issue 4, 2008, Pages 1201-1283

  Boyd, F Scott ^a  

^a Joint Administrative Procedures Committee of the Florida Legislature ^*

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EID: 49049096506     PISSN: 00246859     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (317)

1. LEWIS CARROLL, THROUGH THE LOOKING GLASS 149 (Signet Classics 2002) (1865).
2. The widespread use of cross-references was noted in Ernest Means, Statutory Cross References - The "Loose Cannon" of Statutory Construction in Florida, 9 FLA. ST. U. L. REV. 1 (1981). His study found that of the 16,000 sections in the Florida Statutes in 1975, some 5,500 contained cross-references. Other states reported comparable numbers. The California Code has been compared to a "Russian nesting doll" because of its many references within other references.
3. Scott A. Baxter, Reference Statutes: Traps for the Unwary, 30 MCGEORGE L. REV. 562, 563 (1999).
4. To "incorporate," after all, literally means to put into a body. The phrase "incorporation by reference" is further defined as a doctrine in law in which "the terms of a contemporaneous or earlier writing, instrument, or document capable of being identified can be made an actual part of another writing, instrument, or document by referring to, identifying, and adopting the former as a part of the latter." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1145 (3d ed. 1981). Further discussion of incorporating references is found infra Part II.A.3.
5. See Horace Emerson Read, Is Referential Legislation Worthwhile?, 25 MINN L. REV. 261, 262 (1941).
6. The term "legislation" is used here in a very broad sense. It covers any published governmental requirement or restriction that is generally applicable and has the force and effect of law, including constitutions, federal statutes, regulations, state statutes, rules, and county and municipal ordinances.
7. Courts have often given restrictive interpretations to incorporating references quite clearly intended to include future changes to the referenced documents. In Department of Legal Affairs v. Rogers, 329 So. 2d 257 (Fla. 1976), the statute at issue adopted rules of the Federal Trade Commission "as from time to time amended." The Florida Supreme Court decided that the statute "intended" for the Department of Legal Affairs to conform its rules only to those Federal Trade Commission regulations and decisions in effect on or before the effective date of the Florida law, expressly noting that any other "construction" would render the statute unconstitutional. Id. at 267. Related cases are discussed infra note 235 and accompanying text.
8. See, e.g., Lee v. State, 635 P.2d 1282 (Mont. 1981) (holding unconstitutional a delegation to require state authorities to adopt speed limits required under an incorporated federal law); State v. Rodriguez, 379 So. 2d 1084 (La. 1980) (holding it unconstitutional for a statute to delegate to a federal agency or Congress the legislature's power); State v. Dougall, 570 P.2d 135 (Wash. 1977) (holding it unconstitutional to permit future federal designation of controlled substances to automatically become controlled in Washington); State v. Grinstead, 206 S.E.2d 912 (W. Va. 1974) (holding an attempted incorporation of future federal law controlling LSD unconstitutional); Idaho Savings & Loan Ass'n v. Roden, 350 P.2d 225 (Idaho 1960) (holding provisions delegating to the Congress power to make future state laws governing appellant's business unconstitutional); Dawson v. Hamilton, 314 S.W.2d 532 (Ky. 1958) (holding a state statute unconstitutional to the extent that it adopted time standards to be fixed in the future by Congress). Other cases are discussed infra note 228 and accompanying text.
9. This Article primarily focuses on Florida law, but cites cases from throughout the states. While there are naturally some variations, the general history and issues discussed here have broad application.
10. CARROLL, supra note 1, at 131 (Alice).
11. Cecil Carr, Legislation by Reference and the Technique of Amendment, 22 J. COMP. LEGIS. & INT'L LAW 12, 12 (1940), notes that the term reference legislation covers some distinct drafting processes.
12. See, e.g., State v. J.R.M., 388 So. 2d 1227 (Fla. 1980) (holding that an amendatory reference is incorporative); Commonwealth v. Dougherty, 39 Pa. Super. 338 (Pa. Super. Ct. 1909) (holding that an incorporative reference violated prohibition on amendatory references).
13. While these particular titles may not always be used in cases or commentary, the basic concepts have long been recognized. See John W. Brabner-Smith, Incorporation by Reference and Delegation of Power - Validity of "Reference" Legislation, 5 GEO. WASH. L. REV. 198, 208 (1936);
14. Carr, supra note 10, at 12; Arie Poldervaart, Legislation by Reference - A Statutory Jungle, 38 IOWA L. REV. 705, 705 (1953); Read, supra note 4, at 262.
15. Unlike an incorporative reference, no penalty or benefit can be assessed or withheld by the entity making the reference as a consequence of failure to meet the referenced standards, requirements, or prohibitions. Unlike an amendatory reference, no addition or modification is made to the scope or application of the referenced material.
16. FLA. STAT. § 250.82(1) (2007).
17. A later subsection of the Florida Statute provides that state courts have concurrent jurisdiction to enforce the federal statute to the extent allowed by federal law, § 250.82(2), but there is no attempt to incorporate the federal statute as part of Florida substantive law.
18. This is not to be confused with a situation in which one government requires compliance with another entity's regulations as a condition for receipt of the first government's permit. This latter type of reference is clearly incorporation.
19. It is sometimes difficult to determine whether a reference is amendatory or incorporative. In State v. Varela, 636 So. 2d 559 (Fla. Dist Ct. App. 1994), the court concluded that a statute providing that escape from a juvenile detention facility "constitutes escape within the intent and meaning of s[ection] 944.40" was an incorporative reference, rather than an amendatory reference expanding the scope of section 944.40.
20. 168 So. 2d 537 (Fla. 1964).
21. Most states have constitutional provisions prohibiting amendment of laws by reference: ALA. CONST. art. IV, § 45; ARIZ. CONST. art. IV, pt. 2, § 14; ARK. CONST. art. 5, § 23; CAL. CONST. art. IV, § 9; COLO. CONST. art. V, § 24; FLA. CONST. art. III, § 6; GA. CONST. art. III, § V, ¶ III; IDAHO CONST. art. III, § 18; ILL. CONST. art. IV, § 8(d); KAN. CONST. art. 2, § 16; KY. CONST. § 51; LA. CONST. art. III, § 15(B); MD. CONST. art. III, § 29; MICH. CONST. art. IV, § 25; MISS. CONST. art. 4, § 61; MO. CONST. art. III, § 28; NEB. CONST. art. III, § 14; NEV. CONST. art. 4, § 17; N.J. CONST. art. IV, § VII, ¶ 5; N.M. CONST. art. IV, § 18; N.Y. CONST. art. III, § 16; N.D. CONST. art. IV, § 13; OHIO CONST. art. II, § 15(D); OKLA. CONST, art. 5, § 57; OR. CONST. art 4, § 22; PA. CONST. art. 3, § 6; TEX. CONST. art III, § 36; VA. CONST. art IV, § 12; WASH. CONST. art. 2, § 37; W. VA. CONST. art. VI, § 30; WYO. CONST. art. 3, § 26.
22. See generally Brabner-Smith, supra note 12; Poldervaart, supra note 12, at 705; Read, supra note 4, at 262.
23. People ex rel. Drake v. Mahaney, 13 Mich. 481 (Mich. 1865).
24. Florida Statutes section 120.54(1)(i), part of Florida's Administrative Procedure Act, provides in part, "No rule may be amended by reference only. Amendments must set out the amended rule in full in the same manner as required by the State Constitution for laws."
25. Florida Statutes section 125.67, relating to county governments, provides in part, "No ordinance shall be revised or amended by reference to its title only. Ordinances to revise or amend shall set out in full the revised or amended section, subsection, or paragraph of a subsection."
26. Florida Statutes section 166.041(2), relating to municipalities, provides in part, "No ordinance shall be revised or amended by reference to its title only. Ordinances to revise or amend shall set out in full the revised or amended act or section or subsection or paragraph of a section or subsection."
27. In earlier years, a few courts held that incorporative references were also prohibited by these constitutional provisions. See Doud v. Citizens' Ins. Co., 6 Pa. C.C. 329 (Pa. Com. Pl. 1889) (holding that Pennsylvania's constitutional provision meant that "when the provisions of a former law are to be incorporated with a subsequent statute, they, or the law containing them, shall be re-enacted and published at length"). The exclusion of incorporative references from constitutional prohibitions against amendment by reference is now well established, however. See Keener v. City of Kendallville, 191 N.E.2d 6 (Ind. 1963) (holding an act relating to off-street parking facilities does not amend, but rather incorporates other laws; therefore article 4, section 21 has no application); Ballew v. Denson, 320 P.2d 382 (N.M. 1958) (holding that an incorporation by reference statute did not contravene article 4, section 18 of the New Mexico constitution); In re Opinion of the Justices, 81 So. 2d 277 (Ala. 1955) (holding that a constitutional provision forbidding amendment by title not applicable to acts that merely adopt by reference the provisions of other laws on same subject); Wash. Toll Bridge Auth. v. Yelle, 200 P.2d 467 (Wash. 1948) (holding incorporation by reference statutes were not within prohibitions on amending by title); State v. Waller, 55 N.E.2d 654 (Ohio 1944) (holding the effect of incorporation of existing law is not to revive or continue in force the statute referred to but to carry into execution the statute in which the reference is made); State ex rel. Berthot v. Gallatin County High Sch. Dist., 58 P.2d 264 (Mont. 1936) (holding a reference adopting a pre-existing statute was not "amendatory" nor repugnant to a constitutional provision barring amendment by reference to title); Serv. Feed Co. v. City of Ardmore, 42 P.2d 853 (Okla. 1935) (holding an act in form was original and in itself intelligible and complete and not revisory or amendatory of any existing law in violation of the constitution); Campagna v. City of Baton Rouge, 116 So. 403 (La. 1928) (holding a statute directing contracts to be pursued in the manner "now provided by law" did not attempt to revive or amend any particular law, but merely referenced existing laws); Ex parte Burke, 212 P. 193 (Cal. 1923) (holding that incorporation by reference is proper legislation and is not prohibited by constitutional article 4, section 24); Poe v. Street Improvement Dist. No. 340, 252 S.W. 616 (Ark. 1923) (holding that an act providing for improvements under laws applicable to original districts did not violate constitutional article 5, section 23, as amendment by reference); Van Pelt v. Hilliard, 78 So. 693 (Fla. 1918) (holding that article III, section 16 does not apply to incorporative, only amendatory references); People v. Crossley, 103 N.E. 537 (Ill. 1913) (holding that a referencing act complete within itself does not amend or revive any other act); State v. Bd. of Comm'rs, 110 P. 92 (Kan. 1910) (holding a 1909 law supplemental, not amendatory, and so did not violate state constitution article 2, section 16).
28. Poldervaart, supra note 12, at 709. See also Panama R.R. Co. v. Johnson, 264 U.S. 375, 389 (U.S. 1924) (holding a referenced law contributes nothing in the field to which it is translated; the strength comes altogether from its inclusion in the referencing law); W. Cas. & Sur. Co. v. Young, 339 S.W.2d 277 (Tex. App. 1960) (holding a law incorporated into and made part of the other does not operate by its inherent force, but takes its effect from the statute in which it is incorporated).
29. 18 So. 334 (Fla. 1895).
30. Id. at 338.
31. Id.
32. Id. at 339.
33. A few cases have even attempted to apply constitutional prohibitions against amendment by reference when the incorporative reference was to the legislation of a different legal entity: State v. Armstrong, 243 P. 333 (N.M. 1924) (holding a statute adopting by reference penal provisions of the National Prohibition Act was a violation of New Mexico Constitution article 4, section 18 as an attempt to extend the provisions of the federal act); Commonwealth v. Dougherty, 39 Pa. Super. 338 (Pa. Super. Ct. 1909) (holding that reference incorporating federal definition violated a prohibition on amendatory references). The concerns behind these early cases appear to be similar to those expressed in cases applying the non-delegation doctrine. But it is difficult to logically accept that these constitutional prohibitions were intended to apply to the legislation of another entity - which a state would of course have no legal authority to amend by reference or otherwise. Adding to the confusion is the fact that a very few states have constitutional provisions that were evidently drafted to restrict incorporative references as well as amendatory references. Though as noted infra note 54, the courts have given extremely limited effect to these provisions.
34. See FLA. CONST. art. VIII, § 6(e), and the footnotes thereto.
35. FLA. STAT. § 2.01 (2007). Florida Statute section 775.01 also adopts the common law of England in relation to crimes without a termination date. Both statutes were enacted in 1829 and in fact come into play in case law with surprising frequency. See, e.g., Fla. Dep't of Corr. v. Abril, 969 So. 2d 201 (Fla. 2007). Poldervaart, supra note 12, at 732, says that most states have similar provisions. But see LA. CONST. art. III, § 15(B) ("No system or code of laws shall be adopted by general reference to it").
36. The general adoption of the Revised Statutes through incorporation in a subsequent act was expressly sanctioned as constitutional by the Florida Supreme Court in 1893 in Mathis v. State, 12 So. 681 (Fla. 1893). The Florida Legislature has for some time used the permanent statutory revision system. Beginning with the 1999 regular session, the Reviser's Adoption Act incorporating the Florida Statutes has been submitted to the Legislature annually. See FLA. STAT. §§ 11.241-.2425 (2007).
37. See, e.g., Assimilative Crimes Act, 18 U.S.C. § 13(a) (2006) (adopting the criminal law of the state in which federal enclaves are situated and making it applicable within those areas under federal law).
38. See, e.g., Orr v. Quigg, 185 So. 726 (Fla. 1938) (municipal incorporation of state misdemeanors).
39. See, e.g., Wright v. Worth, 91 So. 87 (Fla. 1922) (municipal incorporation of the Federal Volstead Act).
40. See, e.g., FLA. STAT. § 380.0551 (2007) (designating the Green Swamp Area as an "area of critical state concern" and expressly incorporating several chapters of the Florida Administrative Code).
41. See, e.g., § 380.0555(8)(a)(2) (incorporating certain zoning ordinances of the Franklin County Board of County Commissioners).
42. See, e.g., § 220.03(1)(n) (referencing the United States Internal Revenue Code; subsequent sections adopt it for various purposes).
43. See, e.g., § 316.46 (2007) (requiring compliance with motor vehicle safety standards contained in Title 49 of the Code of Federal Regulations).
44. See, e.g., FLA. ADMIN. CODE ANN. R. 14-22.0011(5)(g) (2007) (incorporating a definition of "Certified General Appraiser" from the Florida Statutes into the rule).
45. See, e.g., R. 64F-12.001 (incorporating definitions contained in Title 21 of the Code of Federal Regulations by reference).
46. See, e.g., R. 6C4-6.0021(7)(c)(2) (adopting the definition of "violent misconduct" in section 16 of Title 18 of the United States Code).
47. See, e.g., § 163.3209 (requiring vegetation maintenance and tree pruning conducted by utilities to conform to ANSI A300 standards).
48. Wilentz v. Sears, Roebuck & Co., 172 A. 903 (N.J. Ch. 1934), cited in Poldervaart, supra note 12, at 719.
49. The case did not involve an attempt to prospectively adopt changes that might be made in the future. The attempt to adopt future changes to referenced legislation of another jurisdiction is widely recognized as an unconstitutional delegation of power. See infra Part V.
50. Poldervaart, supra note 12, at 720.
51. Note, however, that the Florida Supreme Court has held that Florida municipalities have no power to adopt published codes or public records by reference, except to the extent that authority has been expressly granted by statute. State ex rel. McFarland v. Roberts, 74 So. 2d 88 (Fla. 1954). Florida Statutes section 165.191, relied upon in the opinion as providing such authority, was repealed in 1974. It should be noted that this case recognizes that the narrower power to adopt state misdemeanors as local offenses is based upon constitutional charter and does not require express statutory authorization. See further discussion infra note 237 and accompanying text.
52. Quinlan v. Houston & Tex. Cent. Ry. Co., 34 S.W. 738, 741 (Tex. 1896).
53. Surrency v. Winn & Lovett Grocery Co., 34 So. 2d 564, 564-65 (Fla. 1948).
54. See, e.g., Commonwealth Edison Co. v. Ill. Pollution Control Bd., 468 N.E.2d 1339 (Ill. App. Ct. 1984) (holding that four appendices to the federal RCRA rules mentioned without any particular "incorporating" language became part of state law).
55. Sometimes applicable statutes do require specific language to affect an incorporation. FLA. STAT. § 120.55(1)(a)(4) (2007) ("The reference shall specifically state that the form is being incorporated by reference and shall include the number, title, and effective date of the form and an explanation of how the form may be obtained.")
56. At least four state constitutions appear on their face to restrict the use of incorporation by reference to some extent: LA. CONST. art. III, § 15(B) ("No system or code of laws shall be adopted by general reference to it."); N.J. CONST. art. IV, § VII, ¶ 5 ("No act shall be passed which shall provide that any existing law, or any part thereof, shall be made or deemed a part of the act or which shall enact that any existing law, or any part thereof, shall be applicable, except by inserting it in such act."); N.Y. CONST. art. III, § 16 ("No act shall be passed which shall provide that any existing law, or any part thereof, shall be made or deemed a part of said act."); N.D. CONST. art. IV, § 13 ("No bill may be amended, extended, or incorporated in any other bill by reference to its title only, except in the case of definitions and procedural provisions."). Louisiana's provision may be intended to protect its unique Civil Code. In Means, supra note 2, at 2, it is noted that the courts have declined to give literal effect to the New Jersey and New York provisions on the grounds of practical expediency and have routinely allowed incorporation of procedural law.
57. See, e.g., FLA. STAT. § 120.54(1)(i) (2007) (providing that agencies subject to Florida's Administrative Procedure Act may only incorporate material in existence on the date their rule is adopted). Thus by operation of law no changes to referenced material made after a rule was adopted are ever included in any incorporative reference found in the Florida Administrative Code. This statutory restriction is presumably intended in part to reinforce constitutional limitations on delegation, discussed infra Part V. But the plain language of Florida Statutes section 120.54(1)(i) also applies to references to forms, manuals, and other materials created by the agency itself, where no such constitutional concerns arise. The broad statutory language thus serves the additional purpose of ensuring that the rulemaking procedures of chapter 120 are followed each time agency policy is changed, by requiring the amendment of the incorporating rule each time a form, manual, or other material created by the agency is altered. In the absence of such a statutory restriction, and consistent with the American Convention discussed infra Part III, an agency could change its policy simply by rewriting its incorporated manual, without going through the rulemaking process established in the statute. Strictly read, this statutory prohibition against incorporation of any future changes also applies to all incorporative cross-references to other portions of the agency's own rules, but because in such cases the referenced material has itself gone through the complete rulemaking process, it seems unlikely that a court would so hold.
58. See, e.g., FLA. ADMIN. CODE ANN. R. 1S-1.005 (2007) (restricting the materials that may be incorporated in the rules of state agencies).
59. For a general discussion of reading requirements, see Adrian Vermeule, The Constitutional Law of Congressional Procedure, 71 U. CHI. L. REV. 361 (2004).
60. See, e.g., Casey v. S. Baptist Hosp., 526 So. 2d 1332, 1336 (La. App. 4th Cir. 1988) (holding that a readings requirement of the Constitution intended to facilitate informed and meaningful deliberation on legislative proposals); State v. A.L.I.V.E. Voluntary, 606 P.2d 769, 772-73 (Alaska 1980) (holding that the purpose of a reading requirement is to ensure deliberation prior to passage); Witmer v. Polk County, 270 N.W. 323, 327 (Iowa 1936) (holding that the purpose of a constitutional provision requiring the reading of a bill before passage is to let every legislator know exactly what he is voting upon).
61. 1 THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 289 (8th ed. 1927), quoted in Tanner v. Premier Photo Serv., Inc., 125 S.E.2d 609, 614 (W. Va. 1962).
62. State v. Kaufman, 430 So. 2d 904, 907 (Fla. 1983) (holding that widespread publication of copies of bills means that reading a bill's number or short title alone identifies which bill is being considered and meets constitutional requirement of reading by title).
63. FLA. CONST. art. III, § 7 (1980) (decreeing bills are to be read by title only, unless one-third of the members present desire it be read in full).
64. Tanner, 125 S.E.2d at 611-16 (holding that the reading required by constitutional article 6, section 29 is the reading of a bill as drafted, and not material referred to therein); Santee Mills v. Query, 115 S.E. 202, 204-05 (S.C. 1922) (holding that a statute incorporating by reference provisions of the Federal Income Tax Act does not violate the South Carolina Constitution article III, section 18 "reading" requirement, which requires only a reading of the bill as drafted); Bibb County Loan Ass'n v. Richards, 21 Ga. 592 (Ga. 1857) (holding that an act incorporating a county Building and Loan Association was valid despite the fact that its incorporated constitution and by-laws were not read).
65. Some state constitutions require filing or publication of agency rules: City of Kirkwood v. Mo. State Bd. of Mediation, 478 S.W.2d 690, 699 (Mo. Ct. App. 1972) (holding a state constitutional provision required regulations of all state boards and agencies to be filed for publication in the office of the Secretary of State); People v. Fogerty, 219 N.E.2d 801, 801 (N.Y. 1966) (holding the constitution provided that no rule or regulation made by any state department is effective until filed in office of the Department of State); Whitman v. Wis. Dep't of Taxation, 4 N.W.2d 180, 186 (Wis. 1942) (holding that state constitution article 7, section 21 provides that a rule of an administrative body does not become effective until published). Other states require publication by statute: Fla. Dep't of Transp. v. Foster & Kleiser, Inc., 365 So. 2d 224, 225 (Fla. Dist. Ct. App. 1978) (holding that a state rule was invalid if not filed with the Department of State within the prescribed time); State ex rel. Bd. of Educ. of N. Canton Exempted Village Sch. Dist. v. Holt, 186 N.E.2d 862, 863 (Ohio 1962) (holding rules of administrative agencies are invalid until properly filed with the Secretary of State); State ex rel. Villines v. Freeman, 370 P.2d 307, 309 (Okla. 1962) (holding that any rule or regulation of state agency not published by the state librarian shall be void and of no effect); State v. Wacker, 344 P.2d 1004, 1008 (Ariz. 1959) (holding a statute required regulations promulgated by a state agency to be filed with the Secretary of State); Maestas v. Christmas, 321 P.2d 631, 633-34 (N.M. 1958) (holding a state statute required rules and regulations of various state departments to be filed with the state librarian).
66. There is some authority to the contrary, primarily in cases involving zoning by municipalities, generally decided upon the grounds that specific requirements have been violated. Bd. of County Comm'rs v. McNally, 95 N.W.2d 153, 154 (Neb. 1959) (holding an ordinance void for failing to comply with a statute requiring any ordinance prescribing a penalty to be published). Similar municipal restrictions often involve the material that can be incorporated, as discussed in notes 69-81 and accompanying text. See also State, Dept. of Health & Rehabilitative Servs. v. Fla. Project Dirs. Ass'n, 368 So. 2d 954 (Fla. Dist. Ct. App. 1979) (finding invalid an incorporation by reference of a forms index that had to then be consulted to get the list of forms because it did not meet the express statutory requirement that forms be listed by rule).
67. In the early case of City of Napa v. Easterby, 18 P. 253 (Cal. 1888), it was argued that maps and books incorporated by reference in a municipal ordinance had to be published along with the ordinance, but this argument was rejected as leading to absurd consequences: "all that is required to be published is the ordinance itself - the thing which is entered in the ordinance book." Id. at 255. This is the general rule. See, e.g., Raymond v. Baehr, 163 N.W.2d 51, 53 (Minn. 1968) (holding that a building code incorporated by reference into a validly published ordinance was not invalid for lack of publication under a city charter requiring publication of ordinances); City of Hazard v. Collins, 200 S.W.2d 933, 935 (Ky. 1947) (holding that incorporated material enacted into law by reference need not be published in the ordinance book); City of Tucson v. Stewart, 40 P.2d 72, 75 (Ariz. 1935) (holding the publication of an ordinance adopting by reference the city's electrical code was sufficient); City & County of Denver v. Bargan Land & Inv. Co., 267 P. 405, 406 (Colo. 1928) (holding that a referenced map need not be published when on file in the manager's office); Ex parte City of Albany, 106 So. 200, 202 (Ala. 1925) (holding a code was not required to be published in extenso as a part of the ordinance adopting it); People v. Kavanaugh, 507 N.Y.S.2d 952, 957 (N.Y. Dist. Ct. 1986) (holding that adoption by reference of federal rules and regulations into state rules did not require publishing of federal regulations); People v. Poyma, 283 N.W.2d 707, 709 (Mich. Ct. App. 1979) (holding that when an ordinance is adopting a code, the code need not be published in full, but the ordinance adopting the code must be); Reisdorf v. Mayor & Council of Borough of Mountainside, 277 A.2d 554, 575 (N.J. Super. Ct. Law Div. 1971) (holding that where a map incorporated in an ordinance was available for inspection, publication of the ordinance was not in violation of the publication statute).
68. See Buchholz v. City of Oriska, 611 N.W.2d 886, 887 (N.D. 2000) (holding that a statute granting municipalities the power to adopt material by reference requires the filing of a copy of the material for public use and examination); N.Y. State Coalition of Pub. Employers v. N.Y. State Dep't of Labor, 457 N.E.2d 785 (N.Y. 1983) (interpreting article IV, section 8 of the New York Constitution to require a complete copy of incorporated material to be filed with the Department of State); City of Alamogordo v. McGee, 327 P.2d 321, 325 (N.M. 1958) (holding that an ordinance itself contained data on boundaries of the district and referenced a map already on file with the city clerk, where anyone could inspect it was sufficient, although the filing requirement was not technically complied with); Fierst v. William Perm Mem'l Corp., 166 A. 761, 763 (Pa. 1933) (applying statutory requirement that ordinance adopting material must indicate place where material is on file and can be examined); B&T Express, Inc. v. Pub. Util. Comm., 763 N.E.2d 1241, 1250 (Ohio Ct. App. 2001) (holding that statute required filing of not only rule text but also print and electronic versions of adopted federal law with the Secretary of State and others).
69. Rule 1S-1.005(2) of the Florida Administrative Code provides in part, "The agency incorporating material by reference shall file with the Department of State a correct and complete copy of the referenced material with an attached certification page which shall state a description of the referenced material and specify the rule to which the referenced material relates."
70. See the discussion of vagueness in referential legislation infra Part II.D.3.
71. See, e.g., Fierst, 166 A. at 763 (holding that an ordinance incorporating a zoning map that was attached to it only upon filing did not meet the requirement of describing the place where the incorporated material was on file and could be examined).
72. Village of Durand v. Love, 236 N. W. 855, 856 (Mich. 1931).
73. See, for example, State ex rel. McFarland v. Roberts, 74 So. 2d 88 (Fla. 1954), which discusses Florida Statutes section 165.191 (1953), authorizing municipalities to incorporate by reference public records, defined as only those adopted "prior to the exercise by the municipality of the authority to adopt or incorporate by reference as herein granted." (emphasis added). The statute was repealed in 1974.
74. See Raymond v. Baehr, 163 N.W.2d 51 (Minn. 1968) (holding that a code drawn by the city engineer and a committee of the council and approved prior to incorporation qualified as a public record); City of Hazard v. Collins, 200 S.W.2d 933 (Ky. 1947) (holding an incorporation invalid because the document must be approved by the law making body of the city and made a public record before it is incorporated); City of Tucson v. Stewart, 40 P.2d 72 (Ariz. 1935) (holding that the electrical code of the city of Tucson was a public record before it was incorporated, because it had been approved by the mayor and the council of the city of Tucson and lodged with the proper custodian); L.A. Thompson Scenic Ry. Co. v. McCabe, 178 N.W. 662, 664 (Mich. 1920) (holding that a building code incorporated by reference was a "fugitive paper" in the custody of the city clerk and was not a valid public record).
75. Orval Etter, Referential Practices in Municipal Legislation, 39 OR. L. REV. 209, 242 (1960). See also FLA. STAT. § 120.55(2)(d) (2007) (requiring, as part of Florida's Administrative Procedure Act, that the Florida Administrative Weekly website allow a user to view agency forms to be incorporated by reference in rules of state agencies before those rules are adopted, similarly reflecting a concern with public notice prior to adoption).
76. Rule 1S-1.005 of the Florida Administrative Code provides: (1) Any ordinance, standard, specification or similar material may be incorporated by reference in a rule adopted pursuant to Section 120.54, F.S., and Rule 1S-1.002, F.A.C., subject to the following conditions: (a) The material shall be generally available to affected persons. (b) The material shall be published by a governmental agency or a generally recognized professional organization. (2) The agency incorporating material by reference shall file with the Department of State a correct and complete copy of the referenced material with an attached certification page which shall state a description of the referenced material and specify the rule to which the referenced material relates.
77. Florida Statutes section 120.54(1)(i), as amended by chapter 2001-75 of the Laws of Florida, provides that the Department of State "may prescribe by rule requirements for incorporating materials by reference pursuant to this paragraph." It is not entirely clear if this authority extends solely to the procedural aspects of incorporation, or, if the grant of authority does allow the Department to prescribe substantive limitations, what statutory standard governs its discretion.
78. In Department of Health & Rehabilitative Services v. Florida Project Directors Association, 368 So. 2d 954 (Fla. Dist. Ct. App. 1979), the court apparently applied similar language found in former Model Rule 28-3.035 of the Florida Administrative Code (June 10, 1980). Though the exact basis of the decision is hard to distill from the opinion, the court stated that the incorporation of a Departmental Forms Index into department rule did not comply with the model rules, which only permitted incorporation of material "generally available to affected persons;" therefore, the court held the incorporation and the rule invalid. Id. at 955. In reading the opinion, it should also be noted that until 1984, Florida Statutes section 120.53(1)(b) required in part that an agency "[a]dopt rules of practice setting forth the nature and requirements of all formal and informal procedures, including a list of all forms and instructions used by the agency in its dealings with the public" (emphasis added).
79. See supra notes 69-73 and accompanying text.
80. See Hillman v. N. Wasco County People's Util. Dist., 323 P.2d 664 (Or. 1958) (holding that a statute providing electrical installations in the state should be made in accordance with national electrical code, as approved by the American Standards Association); Seewar v. Town of Summerdale, 601 So. 2d 198 (Ala. Crim. App. 1992) (discussing a statute that limited municipal incorporations to technical and other like codes published in books or pamphlets, such as those pertaining to construction of buildings, installation of plumbing, fire prevention, parks, airports, and housing). Rule 1S-1.005 of the Florida Administrative Code limits incorporated material to an ordinance, standard, specification, or similar material. See supra note 74.
81. State ex rel. McFarland v. Roberts, 74 So. 2d 88 (Fla. 1954) (discussing Florida Statutes section 165.191, enacted in 1953, which authorized municipalities to incorporate public records but expressly prohibited the adoption of a penalty clause by reference); Manning v. City of Lebanon, 124 S.W.3d 562 (Tenn. Ct. App. 2003) (holding that a statute allowing cities to adopt codes by reference prevented the adoption of penalty clauses and required that penalty clauses be set forth in full in the adopting ordinance).
82. Ballew v. Denson, 320 P.2d 382 (N.M. 1958) (holding that only procedural law may be adopted by reference under state constitution article IV, section 10).
83. Jonathan R. Siegel, The Use of Legislative History in a System of Separated Powers, 53 VAND. L. REV. 1457, 1488 (2000). At footnote 177, Siegel supplies the familiar words of Herodotus, "Neither snow nor rain nor heat nor gloom of night stays these couriers from the swift completion of their appointed rounds." Id. at 1488 n.177.
84. Van Pelt v. Hilliard, 78 So. 693, 698 (Fla. 1918) ("The two statutes exist as separate, distinct, legislative enactments, each having its appointed sphere of action . . . .").
85. State ex rel. Attorney General v. Green, 18 So. 334 (Fla. 1895) clearly illustrates that the efficacy of the law adopting the incorporated material is completely independent of the legal effect of the law containing the material being referenced. In Green, the referenced material was part of a statute that had no legal effect at the time of the incorporation, because it had been repealed before the law containing the adoption even took effect. Id. at 335.
86. This question is somewhat parallel to the distinction between amendatory and incorporative references, discussed supra notes 25-31 and accompanying text.
87. 201 So. 2d 643 (Fla. Dist. Ct. App. 1967).
88. Id. at 644. See also Baker's Supermarkets, Inc. v. Dep't of Agric., 540 N.W.2d 574 (Neb. 1995) (holding that the court's jurisdiction to consider the validity of a statute incorporating administrative regulations was under the Uniform Declaratory Judgments Act rather than the Administrative Procedure Act, providing review of administrative regulation under petition for declaratory judgment).
89. Issues involving the possibility of double jeopardy are discussed infra Part II.D.4.
90. If proper procedures have otherwise been followed, scrivener's errors or incorrect references resulting from such confusion have been considered harmless error. See City of Litchfield v. Thorworth, 169 N.E. 265 (Ill. 1929) (holding that errors in charging documents alleging violation of a referenced state statute in addition to a violation of the referencing ordinance that was actually being prosecuted constituted a surplusage that did not mislead or affect the prosecution).
91. Goodman v. Kendall Gate-Investco., Inc., 395 So. 2d 240 (Fla. Dist. Ct. App. 1981) (holding that adopting other statutes by reference was proper when it was not in conflict with organic law or enabling statute).
92. 57 So. 547 (Miss. 1912).
93. See, e.g., Sloss-Sheffield Steel & Iron Co. v. Smith, 57 So. 29 (Ala. 1911) (holding a municipal ordinance incorporating all misdemeanors under state law valid as to those misdemeanors over which the municipality had authority).
94. Council of Lower Keys v. Charley Toppino & Sons, Inc., 429 So. 2d 67 (Fla. Dist. Ct. App. 1983) (holding that the Florida Department of Environmental Regulation was not required or authorized to deny air pollution permit for failure to comply with local zoning ordinances or land-use restrictions because issuance of permit was based solely on compliance with applicable pollution laws).
95. Int'l Bus. Machines Corp. v. Korshak, 217 N.E.2d 794 (Ill. 1966) (holding that it was permissible to incorporate by reference into a new act material that is germane to the subject expressed in title of new act, but matter cannot be included by reference which could not have been included directly).
96. Kreulhaus v. City of Birmingham, 51 So. 297 (Ala. 1909) (holding attempted adoption of state misdemeanors void because some misdemeanors went beyond the power of the city to control).
97. Fla. Citrus Processors Ass'n v. Jesse J. Parrish, Inc., 415 So. 2d 1299 (Fla. Dist. Ct. App. 1982) (holding that an agency rule adopting by reference citrus content standards of the federal government was limited to existing standards by the state's non-delegation doctrine); Hillman v. N. Wasco County People's Util. Dist., 323 P.2d 664, 667 (Or. 1958) (holding unconstitutional a Public Service Commission order adopting the National Electrical Safety Code with subsequent changes made by the Federal Department of Commerce). The interplay between incorporation by reference and the non-delegation doctrine is discussed in detail infra Part V.
98. Sloss-Sheffield Steel, 57 So. at 29 (finding a municipality had full authority to utilize reference statutes provided that it otherwise has the power to legislate as to the subject matter).
99. Though often raised in the same case, the doctrines of vagueness and unlawful delegation are conceptually distinct. In State v. Welch, 279 So. 2d 11 (Fla. 1973), the Florida Supreme Court reversed a trial court's determination that a Florida statute incorporating future federal law was unconstitutionally vague, but went on to find that portions of the statute did constitute an unconstitutional delegation of legislative authority.
100. 365 So. 2d 157, 158 (Fla. 1978).
101. Id. at 160. See also City of Farmington Hills v. Betrus, 377 N.W.2d 832, 834 (Mich. Ct. App. 1985) (holding that an adoption in an ordinance of "Traffic Code" was clearly to the uniform traffic code and thus was clearly identified).
102. In Savage v. Wallace, 51 So. 605, 607 (Ala. 1910), a statute made reference to a type of "stock law" that evidently had existed at the time the reference was made, but which was no longer known. The court concluded the statute was therefore too vague and indefinite to be applied. Id. The opposite situation arose in McKee v. City of Geneva, 627 S.E.2d 555 (Ga. 2006), in which the court found a reference to a document that was not yet in existence but was to be adopted sometime in the future also too indefinite to be applied. See also S. Operating Co. v. City of Chattanooga, 159 S.W. 1091 (Tenn. 1913) (finding a reference in an ordinance to chapter 593 nonexistent and null).
103. See Rollins v. Town of Gordonsville, 215 S.E.2d 637 (Va. 1975) (invalidating an ordinance because it referred to only the article and title numbers of the adopted code without a chapter number, where two of the eight chapters under the title contained an article 6); State v. Doane, 311 N.E.2d 803, 806 (Ind. 1974) (holding that a state statute defining "dangerous drug" to include "any drug the label of which is required by federal law to bear the statement: 'Caution: Federal law prohibits dispensing without a prescription'" did not meet the requisite standard of specificity as to which sections of federal law were sought to be incorporated); People ex rel. Schoon v. Carpentier, 118 N.E.2d 315 (Ill. 1954) (holding a statute adopting part of an unrelated statutory provision that had to be interpreted by an administrative official, and which required recourse to business customs, unconstitutionally vague, indefinite and uncertain); Rutledge v. City of Greenville, 152 S.E. 700 (S.C. 1930) (holding a reference in a 1901 general law inadequate for not clearly identifying the statute or statutes intended to be incorporated); Yeo v. Tweedy, 286 P. 970 (N.M. 1929) (holding that a reference to laws regulating the method and manner of use of waters of the state might refer to irrigation code or to conflicting artesian water act).
104. 533 So. 2d 777, 777 (Fla. Dist. Ct. App. 1988).
105. Id. at 778.
106. Kreulhaus v. City of Birmingham, 51 So. 297 (Ala. 1909) (attempted blanket adoption of all state misdemeanors held void for uncertainty where some misdemeanors went beyond the power of city to control and it was not clear to the public what acts were actually prohibited); Hanrahan v. Alterman, 396 A.2d 272, 279 (Md. Ct. Spec. App. 1979) (law providing that election to be held in accordance with "the laws of the State of Maryland" not sufficiently specific to validly incorporate Fair Election Practices Act and its penal provisions). But see Sloss-Sheffield Steel & Iron Co. v. Smith, 57 So. 29 (Ala. 1911), a case decided in Alabama only two years after Kreulhaus, in which the argument that adoption of the state's misdemeanors was too broad and uncertain was rejected because the state was the parent of the municipality and knowledge of these laws was already imputed to those governed by them.
107. Poldervaart, supra note 12, at 721.
108. See, e.g., Bergeson v. Pesch, 117 N.W. 431 (Iowa 1962) (finding no reasonable degree of certainty as to whether municipal speed limits were incorporated or not); Hamilton v. City of Louisville, 332 S.W.2d 539 (Ky. 1960) (finding the required reasonable degree of definiteness absent so adoption of the standard time fixed for Kentucky by an act of Congress or by order of the Interstate Commerce Commission could not be given effect); Toronto Pipe Line Co., Dallas, Tex. v. Camerman Pipelines Co. (In re Toronto Pipe Line Co., Dallas, Tex.), 92 N.W.2d 554 (Neb. 1958) (holding it could not be said with a reasonable degree of certainty that the legislature intended to make certain motor carrier licensure provisions applicable to pipe line common carriers); Road Dist. No. 1 v. Sellers, 180 S.W.2d 138 (Tex. 1944) (finding no reasonable degree of certainty that a statute incorporating general laws relative to county bonds was intended to adopt redemption provisions when there were conflicting provisions); State ex rel. Bancroft v. Frear, 128 N.W. 1068 (Wis. 1910) (finding no reasonable degree of certainty that legislative intent was for a primary election statute to incorporate general election law provision allowing a political party to make to fill a vacancy when the party nominee dies after ballots were printed); Goodman v. Kendall Gate-Investco., Inc., 395 So. 2d 240 (Fla. Dist. Ct. App. 1981) (finding an ordinance adopting the South Florida Building Code did not also automatically incorporate OSHA safety standards, which had been in turn incorporated into the South Florida Building Code, because such a "reference within a reference" was too obscure to clearly indicate intention to replace common law safety standards);.
109. See, e.g., Peay v. Bd. of Educ., 377 P.2d 490 (Utah 1962) (finding specific incorporative reference to be a scrivener's error and substituting a similarly numbered section for the new subject); Adams v. State, 294 N.W. 396 (Neb. 1940) (holding that where a statute is adopted by another statute and referred to merely by words describing its general character, only those parts of it which are of a general nature, or which particularly relate to the subject of the adopting statute, will be considered as incorporated into the adopting statute); State v. Bd. of Comm'rs, 110 P. 92 (Kan. 1910) (holding that not all of the provisions of the 1893 statutes were incorporated by the 1909 act, but only those appropriate to the new subject).
110. The fact that the drafting technique of incorporation by reference is used does not add to or detract from the validity of the legislation. In Davis v. Insurance Commissioner & Treasurer, 445 So. 2d 630 (Fla. Dist. Ct. App. 1984), a municipal firefighter applicant challenged a Florida Department of Insurance rule that adopted minimum vision standards set forth in a ten year old National Fire Protection Association pamphlet. It was argued that the act of incorporating such old material was arbitrary and capricious, but the court correctly focused only on whether the standards themselves were directly related to the health and safety of firefighters and the public. Id. at 631.
111. People ex rel. Schoon v. Carpentier, 118 N.E.2d 315 (Ill. 1954) (declaring unconstitutional an adopting statute where the referenced statute made the adopting law so vague, indefinite, and uncertain that men of ordinary intelligence had to guess its meaning).
112. Thomas v. City of W. Palm Beach, 299 So. 2d 11 (Fla. 1974) (finding valid a city ordinance that delegated to building officials discretion to determine if a dwelling was "unfit or unsafe" for human habitation or if the costs of repair exceed fifty percent of the cost of the dwelling after repair, where building codes were also incorporated to guide the inspectors' discretion). See also State v. All Pro Paint & Body Shop, Inc., 639 So. 2d 707 (La. 1994) (holding standards contained in the incorporated Federal Resource Conservation and Recovery Act sufficient for guidance of the state agency). Cf. City of Tucson v. Stewart, 40 P.2d 72 (Ariz. 1935) (holding incorporative references to the National Electrical Code and the National Electrical Safety Code insufficient to save a vague ordinance requiring electrical installations to conform to "approved methods").
113. Printz v. United States, 521 U.S. 898, 918-19 (1997).
114. United States v. Wheeler, 435 U.S. 313 (1978) (citing United States v. Lanza, 260 U.S. 377 (1922)).
115. Heath v. Alabama, 474 U.S. 82, 88 (1985) (quoting Lanza, 260 U.S. at 382).
116. 199 P. 194 (Or. 1921).
117. See also People v. Sell, 17 N.W.2d 193 (Mich. 1945) (finding a municipal ordinance did not create new price control regulation but merely added the city's enforcement sanction to federal law already applicable to Detroit during the war).
118. This was later explained in State v. Charlesworth, 951 P.2d 153 (Or. Ct. App. 1997).
119. See, e.g., Cooley v. State, 110 S.E. 449 (Ga. 1922) (holding that under a dual form of government, violation was an offense against the laws of both the United States and Georgia and could be punished under both laws without double jeopardy); Ex parte January, 246 S.W. 241 (Mo. 1922) (holding that both state and federal governments have power to investigate and punish for crimes involving the sale of intoxicating liquors, and conviction and punishment by the one, in a particular case, is no bar to the right of the other to punish again upon the same facts); Youman v. Commonwealth, 237 S.W. 6 (Ky. 1922) (holding that the power of the state to punish for possession of an illicit still was not affected by the fact that the defendant might also be guilty of a similar offense under federal law); In re Opinion of the Justices, 133 N.E. 453 (Mass. 1921) (holding that enforcement of the Eighteenth Amendment relies upon Congress and the several states passing distinct laws for a common end).
120. 227 So. 2d 896 (Fla. Dist. Ct. App. 1969).
121. Id. at 897.
122. Id.
123. See Earwood v. State, 426 P.2d 151 (Kan. 1967); State v. Amick, 114 N.W.2d 893 (Neb. 1962); State v. Jackson, 291 P.2d 798 (Wyo. 1955); State v. Simpson, 49 N.W.2d 777 (N.D. 1951); State v. End, 45 N.W.2d 378 (Minn. 1950); State v. Musser, 176 P.2d 199 (Idaho 1946); May v. Town of Carthage, 2 So. 2d 801 (Miss. 1941); Miller v. Hansen, 269 P. 864 (Or. 1928); City of Milwaukee v. Johnson, 213 N.W. 335 (Wis. 1927); State v. Tucker, 242 P. 363 (Wash.), adhered to on reh'g by 246 P. 758 (Wash. 1926); State v. Garcia, 200 N.W. 201 (Iowa 1924); Webster v. Knewel, 196 N.W. 549 (S.D. 1924); Ex parte Sloan, 217 P. 233 (Nev. 1923); Koch v. State, 41 N.E. 689 (Ohio 1895); State v. Clifford, 13 So. 281 (La. 1893); McInerney v. City of Denver, 29 P. 516 (Colo. 1892); Pike v. City of Birmingham, 53 So. 2d 394 (Ala. Ct. App. 1951).
124. Benton v. Maryland, 395 U.S. 784 (1969).
125. 397 U.S. 387 (1970).
126. State v. J.R.M., 388 So. 2d 1227 (Fla. 1980) (quoting with approval the general rule contained in Van Pelt v. Hilliard, 78 So. 693 (Fla. 1918)).
127. 78 So. 693.
128. Id. at 698 (emphasis added.)
129. As discussed infra Parts III and IV, the basic principle is often subject to qualification when there is an express or implied legislative intent in the adopting legislation that the incorporation is to include subsequent changes.
130. See Bd. of Educ. v. Vic Regnier Builders, Inc., 648 P.2d 1143 (Kan. 1982); County Comm'rs v. Teton County Youth Servs., Inc., 652 P.2d 400 (Wyo. 1982); Med. Ass'n v. Joint City of Atlanta-Fulton County Bd. of Tax Assessors, 207 S.E.2d 673 (Ga. Ct. App. 1974); Belk v. Bean, 247 So. 2d 821 (Miss. 1971); Powell v. Levy Ct., 236 A.2d 374 (Del. 1967); Gen. Installation Co. v. Univ. City, 379 S.W.2d 601 (Mo. 1964); Haveman v. Bd. of County Road Comm'rs, 96 N.W.2d 153 (Mich. 1959); Mogilner v. Metro. Planning Comm'n, 140 N.E.2d 220 (Ind. 1957); Commonwealth ex rel. Keiffer v. Ceraul, 128 A.2d 187 (Pa. Super. Ct. 1956); San Diego Co. v. Milotz, 300 P.2d 1 (Cal. 1956); Dairy & Consumers Coop. Ass'n v. Ariz. Tax Comm'n, 243 P.2d 465 (Ariz. 1952); School Dist. No. 1 in Arapahoe Co. v. Hastings, 220 P.2d 361 (Colo. 1950); Pac. First Fed. Sav. & Loan Ass'n v. Pierce Co., 178 P.2d 351 (Wash. 1947); Adams v. State, 294 N.W. 396 (Neb. 1940); Wagner v. Ret. Bd. of Policemen's Annuity & Benefit Fund, 17 N.E.2d 972 (Ill. 1938); Gustafson v. Hammond Irrigation Dist. of Rosebud County, 287 P. 640 (Mont. 1930); State ex rel. Murphy v. Harllee, 131 So. 866 (Fla. 1930); Harris County Dist. Attorney's Office v. J.T.S., 296 S.W. 1070 (Tex. 1927); State v. Armstrong, 243 P. 333 (N.M. 1924); Nampa & Meridian Irrigation Dist. v. Barker, 223 P. 529 (Id. 1924); Hutto v. Walker County, 64 So. 313 (Ala. 1913); State v. Caseday, 115 P. 287 (Or. 1911); Stoner v. Pittsburg, Cincinnati, Chi. & St. Louis Ry Co., 20 Ohio Dec. 448 (Ohio Com. Pl. 1909); Ct. of Insolvency v. Meldon, 38 A. 167 (Vt. 1897); Collins v. Blake, 9 A. 358 (Me. 1887); Commonwealth v. Kendall, 11 N.E. 425 (Mass. 1887); In re Main St., 98 N.Y. 454 (N.Y. 1885); Flanders v. Town of Merrimack, 4 N.W. 741 (Wis. 1880).
131. Read, supra note 4, at 270.
132. See the analysis id. at 281-94, in which Read reviews treatment of the issue in the four principal common law countries. The classic rule, along with the so-called "Dexter presumption" discussed infra Part IV, has received widespread application in American courts. One exception occurred in County of Seminole v. City of Lake Mary, 347 So. 2d 674, 675 (Fla. Dist. Ct. App. 1977), where the district court stated, "Since Section 120.31 has been repealed, it is a nullity, and any reference to it in another statute that is still effective may properly be ignored." As noted in Means, supra note 2, at 6, the district court's statement "could not have been more contrary to the well established doctrines." Shortly after Florida's fourth district opinion, when the same statute was before the Florida Supreme Court in State ex rel. City of Casselberry v. Mager, 356 So. 2d 267, 268 n.3 (Fla. 1978), the court re-emphasized the classic rule, stating, "The fact that § 120.31 has been repealed, however, does not render its provisions ineffective for the purposes of § 171.081. We have held that the repeal of one statute which the Legislature has by reference incorporated into another will not affect the referencing statute." (citations omitted).
133. See, e.g., Lake Mary, 347 So. 2d 674.
134. 479 N.W.2d 772 (Neb. 1992). See Jeanelle R. Robson, "Lazarus Come Forth. And He That Was Dead Came Forth." An Examination of the Lazarus Rule: Fisher v. City of Grand Island, 26 CREIGHTON L. REV. 221 (1992).
135. Fisher, 479 N.W.2d at 774.
136. Id. (Shanahan, J., dissenting).
137. Among several arguments raised in dissent was a suggestion that the reference was in fact a general one from which the court could infer the legislative intent that subsequent changes to the referenced justice of the peace statute, including its repeal, would be effective as to the incorporating legislation. Id. at 776. This doctrine is termed the Dexter presumption in this Article and is discussed infra Part IV. If the dissent was correct that it was a general reference, the argument is sound. Even then, however, the "Lazarus" analogy logically fails, for it is always the adopting statute that is being applied, never the repealed one. The interpretation of the adopting statute is simply being changed to conform to the presumed intent of the legislature that adopted it. There is in either case no "resurrection" of a repealed statute, which could have no application to the case.
138. See supra text accompanying notes 63-68.
139. For example, Florida Statutes section 120.55(1)(a)(4) provides that forms used by a state agency in its dealings with the public shall not be published in the Florida Administrative Code but instead incorporated by reference and filed with the Florida Department of State in Tallahassee. This achieves the intended purpose of clearly identifying exactly which version of the form is to be used while reducing the size and cost of publishing the Code. However, it provides extremely limited access to people throughout the state who may be required to use the form.
140. While no data was found specifically relating to electronic filing of incorporated materials, the information on expanded public access when codes themselves are published electronically is persuasive. Prior to the implementation of the Florida Government Electronic Rulemaking System (eRules), https://www.flrules.org, a Joint Administrative Procedures Committee report indicated about 700 subscribers to the printed Florida Administrative Weekly. JOINT ADMIN. PROCEDURES COMM., FLA. LEG., REPORT ON INTERNET NOTICING OF THE FLORIDA ADMINISTRATIVE WEEKLY 3 (2003), http://japc.state.fl.us/publications.cfm (follow "Report on Internet Noticing - 2003" hyperlink). As of November 30, 2007, statistics available from the Florida Department of State hosting facility - analyzed by CommerNet, Inc., www.commer.net, the eRule application service provider - showed over 3,000 subscribers signed up to receive email notification of the latest rule actions matching their individual interests, and over 100,000 visits from the general public to the eRule website each month. While the numbers are not directly comparable, they do suggest a broad expansion of public access. Since traditionally filed incorporated materials are much harder to view than the printed codes themselves, it might be supposed that electronic publishing of incorporated materials would result in an even more dramatic increase in public access.
141. Since December 31, 2007, Florida Statutes section 120.55(2)(d) has required that the Florida Administrative Weekly Internet website allow users to view forms that are being incorporated by reference in state agency rules.
142. See supra Part II.D.3.
143. Senate Bill 704 of Florida's 2008 Regular Session provides for electronic publication of materials incorporated by reference in state agency rules, but exempts copyrighted materials. The bill passed both houses of the Florida Legislature, but has not yet been signed by the Governor.
144. Compare Veeck v. S. Bldg. Code Cong. Int'l, Inc., 293 F.3d 791 (5th Cir. 2002) (holding website publication of a city law adopting a building code did not infringe the copyright of the organization that authored model code), with Practice Mgmt. Info. Corp. v. Am. Med. Ass'n, 121 F.3d 516 (9th Cir. 1997) (holding the AMA did not lose its copyright in a system of medical procedure classification codes when the federal government required Medicaid and Medicare filers to use the codes). For detailed discussions of the complex issues involved, see Lawrence A. Cunningham, Private Standards in Public Law: Copyright, Lawmaking and the Case of Accounting, 104 MICH. L. REV. 291 (2005), and Katie M. Colendich, Who Owns "The Law"? The Effect on Copyrights when Privately-Authored Works Are Adopted or Enacted by Reference into Law, 78 WASH. L. REV. 589 (2003).
145. CARROLL, supra note 1, at 189 (Humpty Dumpty).
146. 22 Mo. 559 (Mo. 1856)
147. See supra note 132 and accompanying text.
148. Crinnion, 22 Mo. at 559.
149. Id.
150. Id. (emphasis added).
151. Id.
152. Read, supra note 4, at 271.
153. Poldervaart, supra note 12, at 729. See also Haw. Providers Network, Inc. v. AIG Haw. Ins. Co., 98 P.3d 233 (Haw. 2004); In re Commitment of Edward, 570 A.2d 917 (N.J. 1990); Roddy Mfg. Co. v. Olsen, 661 S.W.2d 868 (Tenn. 1983); Bd. of County Comm'rs v. Teton County Youth Servs., Inc., 652 P.2d 400 (Wyo. 1982); Sch. Dist. No. 17, Douglas County v. State, 316 N.W.2d 767 (Neb. 1982); City of Warrensburg v. Bd. of Regents of Cent. Mo. State Univ., 562 S.W.2d 340 (Mo. 1978); Mach. Co. v. Yavapai County, 491 P.2d 1132 (Ariz. 1972); Overstreet v. Blum, 227 So. 2d 197 (Fla. 1969); People v. Reese, 109 N.W.2d 868 (Mich. 1961); Romanov v. Dental Comm'n, 111 A.2d 9 (Conn. 1955); Ex parte McMahan, 237 P.2d 462 (Okla. Crim. App. 1951); Egbert v. City of Dunseith, 24 N.W.2d 907 (N.D. 1946); McLeod v. Commercial Nat'l Bank, 178 S.W.2d 496 (Ark. 1944); O'Flynn v. E. Rochester, 54 N.E.2d 343 (N.Y. 1944); Noble v. Noble, 103 P.2d 293 (Or. 1940); Gilson Bros. Co. v. Worden-Allen Co., 265 N.W. 217 (Wis. 1936); Trimmier v. Carlton, 296 S.W. 1070 (Tex. 1927); Perkins v. Winslow, 133 A. 235 (Del. 1926); Delahoussaye v. Bd. of Trustees, 103 So. 152 (La. 1925); Luzader v. Sargeant, 30 P. 142 (Wash. 1892); In re Kugler, 55 Pa. 123 (Pa. 1867); Turney v. Wilton, 36 Ill. 385 (Ill. 1865); Spring Valley Water Works v. City of San Francisco, 22 Cal. 434 (Cal. 1863); Ind. Alcoholic Beverage Comm'n v. Baker, 286 N.E.2d 174 (Ind. Ct. App. 1972); Davis v. City of Macon, 178 S.E.2d 557 (Ga. Ct. App. 1970).
154. CARROLL, supra note 1, at 136 (The White King).
155. 8 Fla. 276, 278 (Fla. 1859).
156. Id. at 285.
157. Culver v. People, 43 N.E. 812 (Ill. 1896) (holding a reference that refers to general law regulating the subject in hand will be regarded as including the law in force when action is taken); Cole v. Donovan, 64 N.W. 741 (Mich. 1895) (finding a general reference to another law is intended to furnish a rule for future conduct and the law existing at the time when the rule is invoked should be consulted); Gaston v. Lamkin, 21 S.W. 1100 (Mo. 1893) (holding a general reference to established law is implemented by consulting the law governing such cases at the time the rule is invoked); Newman v. City of N. Yakima, 34 P. 921 (Wash. 1893) (holding that a statement that certain things should be done in accordance with existing law, without a specific reference, refers to the law in force at the time of application); Kirk v. Rhoads, 46 Cal. 398 (Cal. 1873) (holding that a statute providing only that the law "in force" was to be applied, without more specific reference, meant the law was in force at the time the case arose).
158. See In re Edward S., 570 A.2d 917, 925 (N.J. 1990).
159. Read, supra note 4, at 271-72 (footnotes, emphasis omitted).
160. In re Edward S., 570 A.2d 917; Layton Sch. of Art & Design v. Wis. Employment Relations Comm'n, 262 N.W.2d 218 (Wis. 1978); Carruba v. Meeks, 150 So. 2d 195 (Ala. 1963); State v. Dist. Ct., 114 N.W.2d 317 (Iowa 1962); State ex rel. Anderson v. Duffy, 185 N.E.2d 435 (Ohio 1962); Byrd v. Short, 307 S.W.2d 871 (Ark. 1958); State ex rel. Walsh v. Buckingham, 80 P.2d 910 (Nev. 1938); In re Easby, 192 A. 646 (Pa. 1937); In re Heiman's Will, 2 P.2d 982 (N.M. 1931); Dabney v. Hooker, 249 P. 381 (Okla. 1926); Nampa & Meridian Irrigation Dist. v. Barker, 223 P. 529 (Idaho 1924); Lyman v. Ramey, 242 S.W. 21 (Ky. 1922); State v. Ganong, 184 P. 233 (Or. 1919); State v. Leich, 78 N.E. 189 (Ind. 1906); Culver, 43 N.E. 812; Cole, 64 N.W. 741; Gaston, 21 S.W. 1100; Newman, 34 P. 921; Kirk, 46 Cal. 398; Arrington v. Arrington, 618 P.2d 744 (Colo. Ct. App. 1980); Campbell v. Hunt, 155 S.E.2d 682 (Ga. Ct. App. 1967); State ex rel. Springer v. Smith, 189 So. 2d 846 (Fla. Dist. Ct. App. 1966).
161. See In re Edward S., 570 A.2d 917; Roddy Mfg. Co. v. Olsen, 661 S.W.2d 868 (Tenn. 1983); Union Cemetery v. City of Milwaukee, 108 N.W.2d 180 (Wis. 1961); Egbert v. City of Dunseith, 24 N.W.2d 907 (N.D. 1946); Trimmier v. Carlton, 296 S.W. 1070 (Tex. 1927).
162. 390 So. 2d 115 (Fla. Dist. Ct. App. 1980).
163. Id. at 116.
164. Id. (emphasis omitted).
165. When both the adopting and referenced statute are promulgated by the same legislative body, express intent might also appear in the legislation modifying or repealing the adopted statute. Simmons v. State, 280 A.2d 351 (Conn. 1971). The legislative intent of the entity later amending the referenced statute would supersede even an earlier contrary intent expressed in the adopting legislation.
166. Several commentators have noted this difficulty. See Means, supra note 2, at 11; Read, supra note 4, at 274; R. Perry Sentell, Jr., "Reference Statutes" - Borrow Now and Pay Later?, 10 GA. L. REV. 153, 156 (1975).
167. See supra notes 160-63 and accompanying text.
168. Since, in Palm Beach County, the county itself was not in control of the rules promulgated by the state agency, would the county even have authority to adopt future changes? See infra Part V on delegation.
169. 24 N.E.2d 448, 450-51 (Ohio 1939).
170. 144 U.S. 92 (1892).
171. 172 N.E. 770 (Ill. 1930).
172. 34 P. 921 (Wash. 1893).
173. 107 P. 482 (Or. 1910).
174. Brabner-Smith, supra note 12, at 204.
175. Read, supra note 4, at 274.
176. Brabner-Smith, supra note 12, at 204; Read, supra note 4, at 274.
177. See, e.g., Means, supra note 2, at 10-12.
178. Means, supra note 2, at 19.
179. Id. at 19-25. He identifies reciprocal cross-references, references having a negative implication, references for directory purposes, and references to provisions within the same statutory scheme. Id.
180. See, e.g., Herrmann v. Cencom Cable Assoc., Inc., 978 F.2d 978 (7th Cir. 1992) (noting the maze of cross-references in the ERISA statute and concluding that adoption without future changes would be "bizarre").
181. Means, supra note 2, at 21-25.
182. FLA. STAT. §§ 120.50-.81 (2007). This figure is based upon an electronic search of the individual section numbers contained within chapter 120. See The Florida Senate, The 2007 Florida Statutes, Title X, Chapter 120, http://www.flsenate.gov/Statutes/ (select "Title X," then follow "Chapter 120" hyperlink).
183. This legislative intent is clear because section 120.72 provides, Unless expressly provided otherwise, a reference in any section of the Florida Statutes to chapter 120 or to any section or sections or portion of a section of chapter 120 includes, and shall be understood as including, all subsequent amendments to chapter 120 or to the referenced section or sections or portion of a section. There are a few similar statutory construction provisions in the Florida Statutes, but they cover only a small portion of cross-references.
184. Florida's Administrative Procedure Act has been amended every year since it was first adopted in 1974.
185. See FLA. STAT. § 775.082(10) (2007) ("The purpose of this section is to provide uniform punishment for those crimes made punishable under this section and, to this end, a reference to this section constitutes a general reference under the doctrine of incorporation by reference."). The legislative intent behind this language is clear. It is curious that the statute attempts to effect this end indirectly by stating that any reference is a general reference, so that application of the common law Dexter presumption will then arrive at the intended result rather than directly stating the legislative intent. This indirect approach may be contrived to avoid those cases in which an express intent is not followed if contrary to the Dexter presumption, criticized here at supra notes 160-63.
186. 2007 Florida Laws, section 7, chapter 2007-112, provides, "For the purpose of incorporating the amendment made by this act to section 784.07, Florida Statutes, in a reference thereto, paragraph (b) of subsection (1) of section 985.11, Florida Statutes, is reenacted to read: . . ." before setting out the statute in full as it read before the bill was passed. This undoubtedly addresses the technical legal problem but does not provide much public notice. Such language explaining the purpose of the reenactment is not codified, and only a very careful researcher would become aware of it.
187. Poldervaart, supra note 12, at 731.
188. 142 N.E. 156, 157 (N.Y. 1923)
189. See, e.g., Calumet Foundry & Mach. Co. v. Mroz, 137 N.E. 627 (Ind. Ct. App. 1922) (holding that even when one section is made a part of another section of the same act by specific reference, such adoption takes the statute as it exists at the time of adoption and does not include subsequent additions or modifications of the statute); Flanders v. Town of Merrimack, 4 N.W. 741 (Wis. 1880) (holding that where section 1210b referred to "the causes mentioned in 1210a" and 1210a was subsequently repealed, the specific reference was to be understood as enumerating the causes, thus applying the Dexter presumption without the common enactment variation).
190. 131 So. 864 (Fla. 1930). State ex rel. Murphy v. Harllee, 131 So. 866 (Fla. 1930), handed down the same day, was decided under the same analysis.
191. For a detailed critique of these cases, see Means, supra note 2, at 12-17.
192. Florida's "common enactment" variation has not been applied in any case since the two original cases, but was discussed in Reino v. State, 352 So. 2d 853, 859 (Fla. 1977). Means, supra note 2, at 17-18, noted that the doctrine of incorporation was probably not applicable to the Reino case at all, and would have been of no help to the party arguing for its application if it had been.
193. The General Reenactment Statute is prepared each year pursuant to Florida Statutes section 11.2421.
194. 279 So. 2d 832 (Fla. 1973).
195. Id. at 834 ("We believe that it would be improper to arbitrarily permit a substantive inclusion by reference.").
196. See supra notes 185-86 and accompanying text.
197. The speculation on the origins of Louisiana's cross-reference construction statute, offered in In re Joyce May Black, 225 B.R. 610 (Bankr. M.D. La. 1998), may well reflect the actual intent of states in enacting construction legislation that has the effect of reversing certain elements of the Dexter presumption.
198. In California, each of several California codes has its own reference construction provision, e.g., CAL. GOV'T CODE § 9 (West 2007). Together, these provide comprehensive coverage. Other states have enacted a single provision with application throughout the state's statutes, and sometimes beyond. See COLO. REV. STAT. § 2-4-209 (2007), DEL. CODE ANN. tit. 1, § 307(b) (2007), HAW. REV. STAT. § 1-25 (2007), IOWA CODE § 4.3 (2007), LA. REV. STAT. ANN. § 1:14 (2007), MINN. STAT. § 645.31(2) (2007), N.D. CENT. CODE § 1-02-40 (2007), OHIO REV. CODE ANN. § 1.55 (WEST 2007), OR. REV. STAT. § 174.060 (2007), 1 PA. CONS. STAT. § 1937 (2007), R.I. GEN. LAWS § 43-4-13 (2007), WYO. STAT. ANN. § 8-1-103(a)(iii) (2007). Other states, including Florida, have enacted construction statutes applicable only to a very limited range of statutes. Sam McKeen, Constitutionality of City Ordinances Which Adopt State Statutes by Reference, 37 OR. L. REV. 272, 274 (1958) offers some interesting thoughts on the effect of extending Oregon's construction statute to municipal ordinances.
199. California, Colorado, Delaware, Hawaii, Louisiana, North Dakota, Ohio, and Rhode Island.
200. See, e.g., N.D. CENT. CODE § 1-02-40 (2007).
201. Iowa, Minnesota, Oregon, Pennsylvania and Wyoming. See, e.g., IOWA CODE § 4.3 (2007).
202. California, Colorado, Hawaii, Iowa, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, and Wyoming.
203. In State v. Charlesworth, 951 P.2d 153 (Or. Ct. App. 1997), it was noted that the Oregon construction statute did not apply to interpretation of statutes that refer to non-Oregon law. See also State v. Dist. Ct., 114 N.W.2d 317 (Iowa 1962) (finding that a construction statute providing that any statute which adopts by reference a whole or portion of another statute shall be construed to include subsequent amendments has no relevance to an adopting statute that adopts general law).
204. DEL. CODE ANN. tit. 1, § 307(b) (2007); LA. REV. STAT. ANN. § 1:14 (2007); MINN. STAT. § 645.31(2) (2007).
205. In many states, of course, an attempt to adopt material to be promulgated in the future by another governmental or private entity constitutes a violation of the non-delegation doctrine. See infra Part V.
206. See supra notes 137-39 and accompanying text.
207. Florida's Administrative Procedure Act, for example, only authorizes the incorporation of material as it exists on the date the adopting rule becomes effective. FLA. STAT. § 120.54(1)(i)(1) (2007)
208. Material incorporated by Florida state agencies in their rules is currently filed in hard copy with the Department of State in conjunction with the rule adopting it. It is maintained by that office to provide the official record of exactly what was incorporated and to prevent subsequent changes to the incorporated material from being construed as being part of the rule without new rulemaking. § 120.54(1)(i)(1). Filing of such materials in electronic form would generally be less cumbersome.
209. Fixed references should not be linked to external websites or material outside the control of the legislating body, because these sources obviously are likely to change over time.
210. See supra notes 82-83 and accompanying text.
211. Such external links would be less reliable than internal links, subject as they would be to actions of those outside the control of the legislating body, but no more so than most material on the Internet. It should also be noted that in many states there is a great likelihood that an attempted adoption of materials to be promulgated by an external entity sometime in the future will be declared unconstitutional. See infra note 228 and accompanying text.
212. The electronic version of the Florida Statutes maintained by the Florida Legislature at http://www.leg.state.fl.us/Statutes contains such ambulatory cross-reference links. Within each annual compilation of the Florida Statutes, the cross-references to other portions of the statutes are underlined and hyperlinked to the latest version of the referenced statute. As discussed supra in notes 177-84 and accompanying text, these links are to the text that in most cases is consistent with both legislative intent and with reader expectations, but most often not to the text that the "Dexter presumption" of prevailing judicial interpretation would conclude was operative.
213. Naturally, administrative and technical errors would still occasionally occur, and the careful lawyer would still have to research, but the system would be far superior to the existing regime in most states.
214. Etter, supra note 73, at 246.
215. CARROLL, supra note 1, at 132 (Alice).
216. Thirty-four of the fifty state constitutions have strict separation of powers clauses that contain language prohibiting one branch from exercising the powers of the others; six states have specific separation of powers clauses that divide the powers of government into three branches; the remaining ten states and the federal government have no explicit separation of powers clause at all, the doctrine being implied from the overall allocation of power. See Scott Boyd, Legislative Checks on Rulemaking Under Florida's New APA, 24 FLA. ST. U. L. REV. 309, 327-28 (1997) (referencing specific constitutional provisions of each state in the context of a discussion of cases relating to the legislative veto).
217. In support of a similar allocation in the proposed Constitution of the United States, Madison cites in Federalist Paper No. 48 the separation of power provisions of the constitutions of Virginia and Pennsylvania and explains the necessity of such separation to prevent the legislative department from controlling all of the powers of government. THE FEDERALIST NO. 48 (James Madison).
218. Madison notes in Federalist Paper No. 43 that the amendment process would guard "against that extreme facility which would render the Constitution too mutable." THE FEDERALIST NO. 43 (James Madison).
219. 287 U.S. 77, 85 (1932).
220. Mistretta v. United States, 488 U.S. 361, 415 (1989) (Scalia, J., concurring that no unconstitutional delegation of legislative authority existed, but dissenting on other grounds).
221. It is article II, section 3 of the Florida Constitution that prohibits the Florida legislature from delegating the power to legislate to others. D'Alemberte v. Anderson, 349 So. 2d 164 (Fla. 1977). See also Anderson v. Tiemann, 155 N.W.2d 322, 326 (Neb. 1967) (reaffirming an earlier decision that the state could not generally delegate to the federal government, but holding otherwise on the facts before it because the Nebraska Constitution had been amended to provide that the state could incorporate federal income tax provisions: what the state constitution generally prohibited, it now specifically allowed).
222. Haw. Providers Network, Inc. v. AIG Haw. Ins. Co., Inc., 98 P.3d 233, 242 (Haw. 2004) (emphasis added) (citing Union Cemetery v. City of Milwaukee, 108 N.W.2d 180, 181-82 (Wis. 1961)).
223. Hecht v. Shaw, 151 So. 333, 333 (Fla. 1933) ("It is a general rule that when a statute adopts a part or all of another statute, domestic or foreign, general or local, by a specific and descriptive reference thereto, the adoption takes the statute as it exists at that time." (emphasis added)).
224. The widespread use of the cross-reference was noted supra note 2.
225. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 543 (1976) defines a cross-reference as "a notation or direction at one part of a work referring to pertinent information at another part."
226. It should be noted that for other purposes of the incorporation doctrine, the distinction may be important. Florida Senate Bill 704 (2008), not yet signed into law by the Governor, would amend Florida's Administrative Procedure Act to distinguish cross-references from other internal references made in an administrative agency rule. It would make all cross-references automatically adopt any future changes made in the referenced rules without requiring amendment of the referencing rule (unless a contrary intent appears in the referencing rule). Other internal references, for example to agency manuals or forms, would continue to incorporate those materials only as they existed on the date of reference. This amendment would conform the law regarding cross-references to the usual expectation of the reader, while at the same time preserving the important requirement that subsequent changes in agency manuals and forms become effective only after rulemaking.
227. This logical conclusion has been followed in the cases and recognized by several commentators. See, e.g., Read, supra note 4, at 283. Depending on how the "delegation" was effected, of course, other procedural issues might arise.
228. See, e.g., Riggins v. State, 369 So. 2d 948 (Fla. 1979) (holding that a Florida statute which incorporated federal law in determining eligibility for the food stamp program as it existed on the date the Florida statute was enacted was not an unconstitutional delegation of legislative authority).
229. See supra Part IV.A.
230. See Oklahoma City v. Okla. Dep't of Labor, 918 P.2d 26 (Okla. 1995) (holding unconstitutional a statute adopting the wage level set under the Federal Davis-Bacon Act as delegating legislative authority); Clemons v. Harvey, 525 N.W.2d 185 (Neb. 1994) (holding a state incorporation of federal law could not constitutionally include provisions relating to medical assistance coverage for caretaker relatives that were not part of the federal law at the time of adoption but were adopted subsequently); Radecki v. Dir. of Bureau of Worker's Disability Comp., 526 N.W.2d 611 (Mich. 1994) (holding the Worker's Disability Compensation Act incorporated by reference existing federal law because it would be an unlawful delegation of legislative power to adopt future legislation)
231. See supra note 157 and accompanying text.
232. At least one commentator has suggested that it is impossible to discern any governing principles in incorporation by reference doctrine and urged the consideration of the need for uniformity in the substantive area being regulated. See Arnold Rochvarg, State Adoption of Federal Law - Legislative Abdication or Reasoned Policymaking, 36 ADMIN. L. REV. 277 (1984). While the perceived inconsistencies in almost all of the specific examples cited by Rochvarg seem to be explained by the principles outlined in this Article, the larger point that logical inconsistencies do exist cannot be denied.
233. A series of early Florida cases seemed to flirt with this exception, but not expressly adopt it. Kahn v. Weinlander, 22 So. 653 (Fla. 1897) held that an act of 1828 that adopted rules of practice in U.S. courts by specific reference nevertheless made subsequent changes to the federal rules applicable in chancery causes in the courts of the Florida territory, but made no mention of non-delegation). Then Farrell v. Forest Inv. Co., 74 So. 216 (Fla. 1917) changed the specific rule of practice followed in Weinlander because of yet another change in U.S. chancery rules, again without discussing non-delegation. Later Surrency v. Winn & Lovett Grocery Co., 34 So. 2d 564 (Fla. 1948) suggested incorporation of the Federal Rules of Civil Procedure as to depositions was ambulatory but again did not discuss unconstitutional delegation, though the court did mention that both statutes related to procedural law. The constitutional prohibitions against incorporation by reference in New Jersey, New York, and New Mexico have sometimes been said to prohibit only the future adoption of substantive changes, not procedural ones. See Port of N.Y. Auth. v. Heming, 167 A.2d 609 (N.J. 1961) (finding a statute which adopted by reference only procedure necessary to effectuate its purposes was not prohibited by article IV, section 7); Burke v. Kern, 38 N.E.2d 500 (N.Y. 1941) (holding incorporation of procedure is not a violation of article III, section 16); Ballew v. Denson, 320 P.2d 382 (N.M. 1958) (holding procedural law may be adopted by another statute by reference without violation of constitutional article 4, section 16).
234. Accreditation issues may or may not involve incorporation by reference, depending on whether actual materials, as opposed to the entities producing those materials, are referenced in the legislation. Incorporation doctrine should be consistent with a state's general policy as to such delegations, however. The general rule is that accreditation by professional associations is not an unconstitutional delegation. See, e.g., Lucas v. Me. Comm'n of Pharmacy, 472 A.2d 904 (Me. 1984) (finding a statute requiring a degree from a pharmacy school to be accredited by the American Council on Pharmaceutical Education not unconstitutional); In re Murphy, 393 A.2d 369 (Pa. 1978), appeal dismissed, 440 U.S. 901 (1979) (holding a requirement that a law degree be from an ABA accredited law school is not an unconstitutional delegation); Ex parte Gerino, 77 P. 166 (Cal. 1904) (finding that a statute prescribing that State Board of Medical Examiners should accept standards for diplomas prescribed from time to time by an association composed of colleges devoted to the work of preparing persons for the profession, makes the standard sufficiently fixed, definite, and certain); and cases cited therein. Florida is a bit equivocal. In Attwood v. State ex rel. Newman, 53 So. 2d 825, 827 (Fla. 1951), an "accredited college of pharmacy" was construed as necessarily being fixed as of the date of the enactment to preserve the constitutionality of the statute. Similarly, in Spencer v. Hunt, 147 So. 282, 287 (Fla. 1933), it was held that it did not matter whether accredited dental colleges meant only those colleges already accredited or those that a board determines later to be accredited, as that term was defined on the date the law took effect, but there would be an unconstitutional delegation if the statute were interpreted to allow the board to redefine "accredited" from time to time. Cf. State ex rel. Kaplan v. Dee, 77 So. 2d 768 (Fla. 1955) (upholding a statute requiring an applicant to be a graduate of a veterinary college recognized by the AVMA, but not expressly discussing how changes in the list of schools "recognized" from time to time would be interpreted); Fla. Bd. of Bar Exam'rs ex rel. Barry Univ. Sch. of Law, 821 So. 2d 1050 (Fla. 2002) (in which the timing issue is similarly not discussed, but in which the nature of the delegation under consideration that the ABA have accredited a law school within a specified time from graduation implicitly applied the court's ruling that no unconstitutional delegation was involved to changes in accreditation from time to time). But see Gumbhir, 618 P.2d 837 (finding unconstitutional a statute requiring a degree from a school to be accredited by a private organization in the future); Allen v. State Bd. of Veterinarians, 52 A.2d 131 (R.I. 1947) (finding constitutional a statute requiring graduation from veterinary school recognized by AVMA must adopt standards in place when the statute was enacted, not as changed over time); State ex rel. Kirschner v. Urquhart, 310 P.2d 261 (Wash. 1957) (finding unconstitutional a statute that declares accredited schools to be those on a list thereafter promulgated by a private association as attempting to delegate legislative power).
235. Plastic Pipe & Fittings Ass'n v. Cal. Bldg. Standards Comm'n, 22 Cal. Rptr. 3d 393 (Cal. Ct. App. 2004) (finding no unconstitutional delegation to the International Association of Plumbing and Mechanical Officials where there was no automatic approval of future changes); Kingery v. Chapple, 504 P.2d 831 (Alaska 1972) (approving a regulation incorporating motorcycle safety standards of the United States Standards Institute Safety Code, but noting that automatic incorporation of future changes would be unconstitutional); Hillman v. N. Wasco County People's Util. Dist., 323 P.2d 664 (Or. 1958) (finding unconstitutional the adoption of the national electrical code as it was changed from time to time); Blitch v. City of Ocala, 195 So. 406 (Fla. 1940) (holding that a municipal ordinance requiring roofing shingles to conform to test specifications of the National Board of Fire Underwriters would be invalid as a delegation of authority if held to include future changes); City of Tucson v. Stewart, 40 P.2d 72 (Ariz. 1935) (finding it unconstitutional to allow an ordinance requiring construction to be in accordance with future regulations of a private association); Wagner, 188 N.W. 487 (finding unconstitutional an ordinance that set wage rates paid to city contractors to the wage set by the union scale as it might change from time to time); State v. Crawford, 177 P. 360 (Kan. 1919) (finding adoption of an electrical code promulgated by a private organization and revised from time to time was an unconstitutional delegation); People v. Pollution Control Bd., 404 N.E.2d 352 (Ill. App. Ct. 1980) (holding legislative adoption of private sporting group's sanction of events was an improper delegation of legislative authority); People v. Mobil Oil Corp., 422 N.Y.S.2d 589 (N.Y. Dist. Ct. 1979) (finding that local government adoption of a private association's future standards on flammable and combustible liquids was an unconstitutional delegation of legislative authority). But see Colo. Polytechnic Coll. v. State Bd. for Cmty. Colls. & Occupational Educ., 476 P.2d 38, 42 (Colo. 1970) (finding a statute incorporating accreditation standards of private associations of colleges for purposes for matriculation was not unconstitutional); State v. Wakeen, 57 N.W.2d 364 (Wis. 1953) (finding a statute adopting the definition of "drug" from United States Pharmacopeia and any future changes was not an unconstitutional delegation); and cases cited therein.
236. See, e.g., Gallagher v. Motor Ins. Corp., 605 So. 2d 62 (Fla. 1992) (holding incorporation of future enactments of other states into a formula for measuring Florida's retaliatory tax was not unconstitutional delegation). Cases are often not clear because they mix consideration of federal due process or equal protection grounds. See Metro. Life Ins. Co. v. Ward, 470 U.S. 869 (1985). At least one state, in an old case, found such reciprocity to constitute an unconstitutional delegation, however. Clark v. Port of Mobile, 67 Ala. 217 (Ala. 1880) (finding a reciprocity statute setting the amount of the Alabama insurance license tax based on other state's taxes violated the prohibition on delegation of power). Cases upholding reciprocity schemes often consider them as extensions of the theory underlying contingency statutes, mentioned infra notes 293-95 and accompanying text.
237. In Brazil v. Division of Administration, State Department of Transportation, 347 So. 2d 755, 757 (Fla. Dist. Ct. App. 1977), the statute provided that it was the duty of the department to regulate signs relating to food, lodging, camping, vehicle service, and attractions "subject to current federal regulations." (emphasis added). This was held ambiguous because the term "current" could be read to mean those regulations "current" when the adoption took place, or "current" at a later time when the department was carrying out its responsibilities. The court, noting that it would be an unconstitutional delegation of legislative power for the legislature to adopt a federal rule in advance, interpreted the statute as incorporating only those regulations in effect at the time of the statute's enactment. Id. at 758. The canon counseling the judiciary to interpret legislation in a constitutional manner can easily collide with the Dexter presumption. In State v. Rodriquez, 365 So. 2d 157 (Fla. 1978), all seven members of the Florida Supreme Court agreed that a Florida statute which purported to adopt future changes to federal food stamp legislation would be unconstitutional. Four justices concluded that the legislation at issue only incorporated federal law as it existed when the Florida statute was enacted, and so held the statute constitutional; three justices dissented, concluding that the Florida statute unconstitutionally incorporated future federal law. Id. at 160-61. The dissenting opinion, authored by Justice Sundberg, argued that the distinction between general and specific references must be applied to the Florida statute. Id. at 162 (Sundberg, J., dissenting). He maintained that since the reference was clearly a general one, making criminal as it did the use, transfer, acquisition, alteration, or possession of food stamps "in any manner not authorized by law" without citing any specific federal statute or regulation, the reference incorporated future changes, and so constituted an unconstitutional delegation. Id. See also Ex parte Elliott, 973 S.W.2d 737 (Tex. App. 1998) (interpreting a statute adopting federal regulations "as amended" to mean as they had been amended up to the time of adoption by reference, thus the statute was not an unconstitutional delegation); Clemons v. Harvey, 525 N.W.2d 185 (Neb. 1994) (concluding a state incorporation of federal law could not include provisions relating to medical assistance coverage that was not part of the federal law at the time of adoption); State v. Gill, 584 N.E.2d 1200 (Ohio 1992) (interpreting a statute incorporating federal food stamp law "as amended" as adopting only those provisions existing on that date to preserve constitutionality); Indep. Cmty. Bankers Ass'n v. State, 346 N.W.2d 737 (S.D. 1984) (finding a reference to the Federal Bank Holding Company Act "as amended" meant as it existed at the moment of reference); State v. Julson, 202 N.W.2d 145 (N.D. 1972) (interpreting a statute incorporating provisions of the Federal Food, Drug, and Cosmetic Act to adopt only provisions in existence at the time of adoption to preserve constitutionality); Johnston v. State, 181 S.E.2d 42 (Ga. 1971) (finding a statute not unconstitutional if its incorporation is limited to present regulations); Wallace v. Comm'r of Taxation, 184 N.W.2d 588 (Minn. 1971) (limiting adopted federal provisions on sick pay to those in force at the time); Seale v. McKennon, 336 P.2d 340 (Or. 1959) (interpreting "and to maintain that status" as only referring to one section referenced to preserve constitutionality); Palermo v. Stockton Theatres, 195 P.2d 1 (Cal. 1948) (interpreting a reference as specific to avoid the issue of constitutionality); Blitch v. City of Ocala, 195 So. 406 (Fla. 1940) (holding a municipal ordinance to have referenced only specifications in existence on the date the ordinance took effect to preserve constitutionality). A critique of such restrictive interpretations may be found in Jonathan E. Becker, State v. Gill: Unconstitutional Delegations Go Uncorrected, 20 OHIO N.U. L. REV. 169 (1993).
238. Except for two 1935 cases, the U.S. Supreme Court has never declared a statute unconstitutional on delegation grounds, despite frequent statements that the legislative power may not be delegated. As would be expected, incorporations of future state and local law similarly pass muster. Incorporation of state criminal law arises under the Assimilative Crimes Act (ACA), which provides that when a person on a federal enclave commits an act that is not a violation of federal law but is a violation of the laws of the state in which the enclave is located, the person may be prosecuted in federal court and shall be subject to a punishment like that provided for by state law. 18 U.S.C. § 13 (2006).
239. In State ex rel. Springer v. Smith, 189 So. 2d 846 (Fla. Dist. Ct. App. 1966), the court was confronted with a city ordinance that made unlawful the commission of any act recognized as a misdemeanor by the Florida Statutes. One issue before the court was whether the ordinance prohibited acts that the State of Florida did not declare to be misdemeanors until after the ordinance took effect in 1955. Id. at 847. The court cited Hecht v. Shaw, 151 So. 333 (Fla. 1933), for the Dexter presumption that when a statute incorporates the law on a particular subject generally, it includes not only the law in force on the date the adopting statute becomes effective, but also all subsequent laws on that subject. Id. The fourth district then ended its inquiry, apparently concluding that the Hecht case authorized the city to make such a future incorporation. Id. at 848. The Hecht case, of course, concerned one Florida statute adopting another Florida statute - an internal reference - so no delegation was possible there. 151 So. at 333. In Smith, by contrast, the court determined that it was the municipality's intent to delegate the authority to define violations of the city's own ordinance to an external entity: the state legislature. 189 So. 2d at 848. Similarly, in Jaramillo v. City of Homestead, 322 So. 2d 496 (Fla. 1975), the Florida Supreme Court stated in dicta that an ordinance which incorporated state law by general reference resulted in subsequent amendments and repeals of the state law having the effect of amending the municipal ordinance. Id. at 498. These cases do not appear to have considered Florida Statutes section 165.091, which expressly restricted municipal incorporation by reference to material in existence on the date of adoption, and which seems to have been in effect in each case when the adoptions were made. Section 165.091 was repealed by 1974 FLA. LAWS 74-192. As discussed in the case of State ex rel. McFarland v. Roberts, 74 So. 2d 88 (Fla. 1954), the authority to incorporate state misdemeanors existed prior to the enactment of section 165.091 under the charter power of cities under Florida's constitution. Id. at 89. The Florida Supreme Court recognized in Rodriquez, 365 So. 2d 157, that a general reference provides no immunity from application of the non-delegation doctrine when an external reference is involved. Id. at 160. Since local governments are subdivisions of a sovereign state, it is conceivable that some special exception to non-delegation may exist, but research did not uncover any commentary or case containing a reasonable explanation of why this might be so. The cases more often just cite to historical precedent, which is mixed. Compare Robinson v. Tax Comm'r, 574 N.E.2d 596 (Ohio Com. Pl. 1989) (finding a municipal tax ordinance referencing future amendment of state statute was an unlawful delegation of legislative authority), with Evans v. Sunshine Jr. Stores, 587 So. 2d 312 (Ala. 1991) (finding that a municipal ordinance that referred generally to law relating to the subject under consideration adopted subsequent modifications, including the repeal of the state statute it referenced).
240. The Eighteenth Amendment was ratified by the requisite number of states by January 29, 1919.
241. National Prohibition Act, 41 Stat. 305 (Oct. 28, 1919) repealed by U.S. CONST. amend. XXI.
242. In re Opinion of the Justices, 133 N.E. 453 (Mass. 1921).
243. See State v. Intoxicating Liquors, 117 A. 588 (Me. 1922). Maine had amended its liquor law to define "any beverage containing a percentage of alcohol, which by federal enactment, or by decision of the Supreme Court of the United States, now or hereafter declared, renders a beverage intoxicating" to be intoxicating under state law. Id. at 589. At the time of enactment of the state statute, the Eighteenth Amendment had been ratified, but the Volstead Act had not become law.
244. Ex parte Burke, 212 P. 193, 194 (Cal. 1923) (finding nothing in the statute which made it invalid so far as it adopted the existing provisions of the Volstead Act).
245. Ex parte Mantell, 216 P. 509, 510 (Nev. 1923). The dissent interestingly mentions an "official opinion of the Attorney General" that had concluded the statute was unconstitutional as making future amendments of the U.S. Congress part of the Nevada law, but this issue was not before the court. Id. at 511.
246. State v. Armstrong, 243 P. 333 (N.M. 1924) (a detailed analysis finding state adoption of the Volstead Act to be "blind legislation" and concluding the admittedly incorporative reference was covered by the constitutional prohibition).
247. Commonwealth v. Alderman, 119 A. 551 (Pa. 1923). The court notes that the Volstead Act, the only piece of legislation on the subject, was enacted prior to the indictment. Id. at 553.
248. Id. at 552-53.
249. See the discussion of amendatory references supra Part II.A.2.
250. Holgate Bros. v. Bashore, 200 A. 672 (Pa. 1938).
251. Id. at 674.
252. Id. at 678.
253. Darweger v. Staats, 196 N.E. 61 (N.Y. 1935).
254. Wilentz v. Sears, Roebuck & Co., 172 A. 903 (N.J. Ch. 1934).
255. Id.
256. Smithberger v. Banning, 262 N.W. 492 (Neb. 1935).
257. Brock v. Superior Court, 71 P.2d 209, 212 (Cal. 1937).
258. Id. at 211.
259. Id. at 213.
260. Id.
261. Jim B. Grant, Jr., Conforming the State Income Tax to Federal Tax Law: Prospective Incorporation of Federal Changes and the Non-delegation Doctrine, 40 ALA. L. REV. 233 (1988).
262. See Cheney v. St. Louis Sw. Ry. Co., 394 S.W.2d 731 (Ark. 1965) (holding that establishing the appellee's tax liability to the state based upon a formula subject to prospective federal legislation or administrative rules was unconstitutional).
263. Florida readopts the provisions of the United States Internal Revenue Code each year, see FLA. STAT. § 220.03(1)(n) (2007), to avoid any questions of unconstitutionality. Note that the Florida Supreme Court held in Presbyterian Homes of Synod of Florida v. Wood, 297 So. 2d 556 (Fla. 1974) that a statute granting tax exemptions to homes for the aged based upon income limitations of the residents was unconstitutional because it provided that these income limitations were to be adjusted to conform to later increases established by the U.S. Department of Housing and Urban Development. See also Thorpe v. Mahin, 250 N.E.2d 633 (Ill. 1969) (finding a statute adopting federal income tax law as it was in effect on the date of state enactment was not an unconstitutional delegation of state legislative power to Congress); Featherstone v. Norman, 153 S.E. 58 (Ga. 1930) (finding adoption of existing exemptions and method of income tax was not unconstitutional where the statute did not make future federal legislation part of the state law); Santee Mills v. Query, 115 S.E. 202 (S.C. 1922) (reviewing an adoption of federal tax regulations that was ambiguous as to its intention to adopt future changes and interpreting it as adopting only existing law to keep the statute to the legitimate field of legislation).
264. See COLO. CONST. art. X, § 19; KAN. CONST. art. 11, § 11; MO. CONST. art. X, § 4(d); NEB. CONST. art. VIII, § 1; N.Y. CONST. art. III, § 22; VA. CONST. art. IV, § 11. See also Carter v. Dir. of Revenue, 805 S.W.2d 154 (Mo. 1991); Anderson v. Tiemann, 155 N.W.2d 322 (Neb. 1967); Rathborne v. Collector of Revenue, 200 So. 149 (La. 1941) (holding that a state statute adopting definition of "capital assets" from federal statute could not mean subsequently adopted changes since under article III, section 18, the legislature shall never adopt a system or code of laws only by general reference).
265. See McFaddin v. Jackson, 738 S.W.2d 176 (Tenn. 1987) (holding that a statute adopting provisions of the federal tax code included future amendments but was not unconstitutional delegation since Tennessee had fixed the rates of the inheritance tax); First Fed. Sav. & Loan v. State Tax Comm'n, 363 N.E.2d 474 (Mass. 1977) (finding that a federal determination on deduction allowed to a savings and loan is not a case in which future federal law is accepted by the legislature as the law of the Commonwealth and thus is not an unconstitutional delegation of power); Katzenberg v. Comptroller of Treasury, 282 A.2d 465 (Md. 1971) (holding that state adoption of a federal definition of "income" is not an unconstitutional delegation without discussion of the effect of future changes, but that the statute appeared to refer to future changes); Commonwealth v. Warner Bros. Theatres, 27 A.2d 62 (Pa. 1942) (holding statutory adoption of a federal definition of "net income" in excise tax was not an unconstitutional delegation of legislative power notwithstanding that the amount of the deduction varied by federal law from time to time); Underwood Typewriter Co. v. Chamberlain, 108 A. 154 (Conn. 1919) (finding that a state statute imposing a tax based upon the net income subject to taxation under federal law did not represent an unconstitutional delegation of legislative power to Congress, particularly where the state statute made no attempt to include future legislation or regulations).
266. 272 So. 2d 473, 476 (Fla. 1972).
267. Id.
268. Id.
269. See State v. Green, 793 P.2d 912 (Utah Ct. App. 1990) (holding unconstitutional an incorporation of federal provisions definitioning crime and penalty); State v. Rodriguez, 379 So. 2d 1084 (La. 1980) (finding it unconstitutional for the Louisiana legislature to delegate to a federal agency or Congress its legislative power to make the possession of certain drugs a crime); Cilento v. State, 377 So. 2d 663 (Fla. 1979) (finding valid a statute regulating controlled substances and incorporating a federal list when classification by the federal agency preceded the state legislative action prohibiting sale); State v. Dougall, 570 P.2d 135 (Wash. 1977) (finding a statute unconstitutional delegation insofar as it permitted future federal designation of controlled substances to become controlled or deleted substances under the Uniform Controlled Substances Act by means of board inaction or acquiescence); People v. Harper, 562 P.2d 1112 (Colo. 1977) (finding constitutional a statute incorporating by reference the Federal Controlled Substances Act at a time when natural and synthetic cocaine were prohibited substances under such Act); State v. Welch, 363 A.2d 1356 (R.I. 1976) (holding that state incorporation of a federal controlled substances act could not constitutionally include subsequent changes that classified phencyclidine as a controlled substance); State v. Grinstead, 206 S.E.2d 912 (W. Va. 1974) (invalidating an attempted adoption of future federal law controlling LSD as an unconstitutional delegation of the legislative power); State v. Julson, 202 N.W.2d 145 (N.D. 1972) (interpreting a statute incorporating provisions of the Federal Food, Drug, and Cosmetic Act to adopt only provisions in existence at the time of adoption and holding it not an unlawful delegation of legislative power); Johnston v. State, 181 S.E.2d 42 (Ga. 1971) (finding a statute not an unconstitutional delegation of legislative power to Congress because its express language limits the regulations which are to be applicable to present regulations); State v Workman, 183 N.W.2d 911 (Neb. 1971) (finding unconstitutional incorporation of a changing federal drug list); State v. Johnson, 173 N.W.2d 894 (S.D. 1970) (finding a statute which prohibited sale of any drug designated by regulations under federal act unconstitutional); State v. Emery, 45 N.E. 319 (Ohio 1896) (interpreting a reference in a statute to the United States Pharmacopoeia to refer to the then existing edition because an attempt to incorporate future editions would be an unconstitutional delegation).
270. See State v. Thompson, 627 S.W.2d 298 (Mo. 1982); Ex parte McCurley, 390 So. 2d 25 (Ala. 1980); State v. King, 257 N.W.2d 693 (Minn. 1977); State v. Lisk, 204 S.E.2d 868 (N.C. Ct. App. 1974); Hilton v. State, 503 S.W.2d 951 (Tenn. Ct. App. 1973).
271. Brock v. Superior Court, 71 P.2d 209 (Cal. 1937) (discussed supra note 255 and accompanying text).
272. 627 S.W.2d 298.
273. Id. at 301.
274. Id. at 302. The court noted that federal action was not the sole factor considered in controlling a substance, but rather concluded that state standards set forth throughout the statute must be applied. Id. at 301 n.2.
275. Id. at 300.
276. Id. at 303.
277. As commentators have recognized, such collaboration may have policy benefits. Jim Rossi, Dual Constitutions and Constitutional Duels: Separation of Powers and State Implementation of Federally Inspired Regulatory Programs and Standards, 46 WM. & MARY L. REV. 1343, 1350 (2005).
278. See, e.g., David L. Markell, The Role of Deterrence-Based Enforcement in a "Reinvented" State/Federal Relationship: The Divide Between Theory and Reality, 24 HARV. ENVTL. L. REV. 1 (2000).
279. See, e.g., Roderick M. Hills, Jr., The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and "Dual Sovereignty" Doesn't, 96 MICH. L. REV. 813 (Feb. 1998).
280. The Florida statute adopting the United States Internal Revenue Code is amended each year to incorporate changes made in the federal law. See FLA. STAT. § 220.03(1)(n) (2007).
281. 42 U.S.C. §§ 6901-92k (2006).
282. TEX. HEALTH & SAFETY CODE ANN. § 361.003(12) (Vernon 2007).
283. 973 S.W.2d 737 (Tex. App. 1998).
284. Id. at 742.
285. Id.
286. See State v. Carey, 920 P.2d 1 (Ariz. Ct. App. 1995) (holding that a rule that expressly incorporated hazardous waste provisions of federal RCRA regulations without future editions was unaffected by the invalidity of the referenced federal regulations); People v. Harris Corp., 483 N.Y.S.2d 442 (N.Y. App. Div. 1984) (invalidating the adoption of a federal list of hazardous wastes under RCRA where a complete copy of the federal regulations existing at the time of adoption was not filed because the constitution forbids wholesale incorporation of federal regulations). But see State v. All Pro Paint & Body Shop, Inc., 639 So. 2d 707 (La. 1994) (upholding state incorporation of federal RCRA's requirements because Louisiana retained power to adopt its own hazardous waste laws in lieu of the federal program).
287. 42 U.S.C. §§ 1396-96s (2007).
288. 525 N.W.2d 185 (Neb. 1994). A detailed consideration of the case may be found in Jeffery R. Kirkpatrick, Restraining Agency Action: Administrative Discretion and Adoption of Statutes by Reference in Clemens v. Harvey, 75 NEB. L. REV. 621 (1996). Another interesting delegation case involving Medicaid is Diversified Investment Partnership v. Dep't of Social & Health Services, 775 P.2d 947 (Wash. 1989), which examined a state statute providing that when any provision of state law created a conflict with federal law that threatened the loss of federal funding, the state provisions in conflict were automatically rendered inoperative. The statute then authorized the implementing state agency to promulgate an interim rule amending any existing regulations and provided for submission of changes to the state legislature. Id. at 948-49. Changes to the federal Medicaid program subsequently created such a conflict, and the state provision declaring any conflicting state provisions inoperative was challenged as an unconstitutional surrender of power to the federal government. Id. at 949. The Washington Supreme Court determined otherwise. It noted that the general rule that the legislature may properly condition the operative effect of a statute upon a future event specified in the law and that this does not transfer the state legislative power to render judgment to the persons or entity capable of bringing about that event. Id. at 952. The court's decision seems perfectly correct on that point, but it begs the question as to the authority for the new interim regulations. Perhaps the wrong state provision was challenged, for it is seldom that the simple repeal of inconsistent authority would leave in place adequate state authority to allow the agency to automatically conform its regulations to the new federal provisions.
289. Clemens, 525 N.W.2d at 187.
290. Id. at 188-89.
291. Id.
292. Id. at 189. See also similar issues involving food stamp programs. State v. Gill, 584 N.E.2d 1200 (Ohio 1992) (upholding a statute incorporating federal food stamp law "as amended" and adopting only those provisions that existed on that date); State v. Rodriquez, 365 So. 2d 157 (Fla. 1978) (interpreting a statute providing that any person who knowingly uses food stamps in any manner not authorized by federal food stamp law to refer to law and regulations in effect at the time the statute was enacted to preserve its constitutionality); State v. Williams, 583 P.2d 251 (Ariz. 1978) (declaring a portion of a reference to future federal legislation on use of food stamps an unconstitutional delegation of legislative power).
293. West Virginia v. U.S. Dep't of Health & Human Servs., 289 F.3d 281 (4th Cir. 2002) (finding that a lack of West Virginia legislation to implement changes to federal Medicaid law risked loss of all or part of its funding).
294. Rossi, supra note 275, outlines tensions that can be present in cooperative federalism programs, reviews several approaches state courts have used to address them, and suggests interpretations of state separation of power doctrine that are less independent and more integrated into a federal constitutional whole.
295. Samuel Mermin, "Cooperative Federalism" Again: State and Municipal Legislation Penalizing Violation of Existing and Future Federal Requirements, 57 YALE L. J.1, 9 (1947).
296. See, e.g., The Aurora, 11 U.S. (7 Cranch) 382 (1813); Diversified Inv. P'ship v. Dep't of Soc. & Health Servs., 775 P.2d 947 (Wash 1989) (ruling that a state statutory provision in conflict with federal Medicaid property reimbursement is not an incorporation of future federal law or an unconstitutional transfer of legislative power); State v. Dumler, 559 P.2d 798 (Kan. 1977) (holding a provision in a statute regulating highway speeds providing that it would expire on the date when Congress removed all restrictions on maximum speed limits not to be an adoption of future federal legislation or an unconstitutional delegation); People v. Parker, 359 N.E.2d 348 (N.Y. 1976) (finding that a statute which defined "predicate felony" under the former habitual offender statute as a crime for which imprisonment exceeding one year could be imposed, regardless of whether crime was committed in New York or out-of-state, did not result in delegation of legislative power,
297. Such contingent legislation is similar to another exception to the non-delegation doctrine: the determination of scientific or statistical facts. In Eastern Air Lines, Inc. v. Department of Revenue, 455 So. 2d 311 (Fla. 1984), a state department determined future fuel price adjustments by applying a statutory formula. The formula utilized changes in the average monthly gasoline price component of the Consumer Price Index issued periodically by the United States Department of Labor. Id. at 315. Eastern Air Lines, citing the incorporation by reference doctrine, argued that this statutory incorporation of future publications of another government entity was an unconstitutional delegation. Id. at 316. The Florida Supreme Court declined to so hold. Although the opinion contains no precise exposition of the court's reasoning, mention is made that the statutory power of the U.S. Secretary of Labor is to collect, collate, and report statistics. Id. at 315. The court also notes that the Florida statute incorporated the federal index for the purposes of making a ministerial determination, and that there was no incorporation of "federal statutes or administrative rules which substantively change the law." Id. at 316. The court seems to be recognizing that no delegation took place because publication of the Consumer Price Index is not a statement of law or policy in any sense, but merely a reporting of objective facts that exist outside of any decision to be made by the federal agency. Id. at 316-17. The publication of an index of price information constitutes a ministerial act, not the exercise of discretion. Cf. Presbyterian Homes of Synod of Florida v. Wood, 297 So. 2d 556 (Fla. 1974) (holding the granting of tax exemptions depending upon income limitations unconstitutional because the limitations were governed by policy determinations made by the federal government).
298. Gary Greco, Standards or Safeguards: A Survey of the Delegation Doctrine in the States, 8 ADMIN. L.J. AM. U. 567 (1994), concluded that all but six states require either strict or loose standards; the remaining six require only procedural safeguards.
299. Id. at 598-99 (identifying only California, Iowa, Maryland, Oregon, Washington, and Wisconsin as following the procedural safeguards approach).
300. The Florida Supreme Court summarized the procedural safeguards approach associated with Professor Kenneth Culp Davis and explained its rejection in Florida in Askew v. Cross Key Waterways, 372 So. 2d 913, 922-25 (Fla. 1978) ("Professor Davis maintains that there should be a shift in emphasis from legislatively imposed standards for administrative action to procedural safeguards in the administrative process . . . . The Davis view is an entirely reasonable one as demonstrated by its adoption in the federal courts and a minority of state jurisdictions, nonetheless, it clearly has not been the view in Florida . . . . Until the provisions of Article II, Section 3 of the Florida Constitution are altered by the people we deem the doctrine of non-delegation of legislative power to be viable in this State.").
301. Perhaps the most widely quoted test was set forth in Cincinnati, Wilmington & Zanesville Railroad Co. v. Clinton County Comm'rs, 1 Ohio St. 77, 88-89 (Ohio 1852) ("The true distinction, therefore, is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made."). See Taxpayers of Mich. Against Casinos v. State, 732 N.W.2d 487 (Mich. 2007); Opinion of the Justices, 892 So. 2d 332 (Ala. 2004); Carmel Valley Fire Prot. Dist. v. State, 20 P.3d 533 (Cal. 2001); Joytime Distribs. & Amusement Co., Inc. v. State, 528 S.E.2d 647 (S.C. 1999); Opinion of the Justices, 725 A.2d 1082 (N.H. 1999); Mead v. Arnell, 791 P.2d 410 (Idaho 1990); Von Ruden v. Miller, 642 P.2d 91 (Kan. 1982); Madison Metro. Sewerage Dist. v. Dep't of Natural Res., 216 N.W.2d 533 (Wis. 1974); Dixon v. Zick, 500 P.2d 130 (Colo. 1972); Pine v. Leavitt, 445 P.2d 942 (Nev. 1968); State v. Rivera, 149 N.W.2d 127 (Iowa 1967); State ex rel. State Park & Recreation Comm'n v. N.M. State Auth., 411 P.2d 984 (N.M. 1966); Remington Arms Co. v. G.E.M. of St. Louis, Inc., 102 N.W.2d 528 (Minn. 1960); Remington Arms Co. v. Skaggs, 345 P.2d 1085 (Wash. 1959); Graves v. Johnson, 63 N.W.2d 341 (S.D. 1954); City of Alexandria v. Alexandria Fire Fighters Ass'n, Local No. 540, 57 So. 2d 673 (La. 1952); Terrell v. Loomis, 235 S.W.2d 961 (Ark. 1951); Robertson v. Schein, 204 S.W.2d 954 (Ky. 1947); State ex rel. Nelson v. Butler, 17 N.W.2d 683 (Neb. 1945); Bailey v. State Bd. of Pub. Affairs, 153 P.2d 235 (Okla. 1944); Chester County Inst. Dist. v. Commonwealth, 17 A.2d 212 (Pa. 1941); First Suburban Water Util. Dist. v. McCanless, 146 S.W.2d 948 (Tenn. 1941); Milk Comm'n v. Dade County Dairies, 200 So. 83 (Fla. 1940); Williamson v. Hous. Auth., 199 S.E. 43 (Ga. 1938): Dunn v. City of Indianapolis, 196 N.E. 528 (Ind. 1935); Van Winkle v. Fred Meyer, Inc., 49 P.2d 1140 (Or. 1935); State ex rel. Orr v. Kearns, 264 S.W. 775 (Mo. 1924); Biffer v. City of Chicago, 116 N.E. 182 (Ill. 1917); Armour & Co. v. City of Richmond, 87 S.E. 609 (Va. 1915); O'Neill v. Yellowstone Irrigation Dist., 121 P. 283 (Mont. 1912); Clyde v. Cummings, 101 P. 106 (Utah 1909); Dent v. United States, 71 P. 920 (Ariz. 1903); Kennedy v. Mayor of Pawtucket, 53 A. 317 (R.I. 1902); Metro. Life Ins. Co. v. Ins. Comm'r, 473 A.2d 933 (Md. Ct. Spec. App. 1984); Martin v. State Liquor Auth., 252 N.Y.S.2d 365 (N.Y. App. Div. 1964); Two Guys from Harrison, Inc. v. Furman, 156 A.2d 57 (N.J. Super. Ct. Law Div. 1959); Ferch v. Hous. Auth., 59 N.W.2d 849 (N.D. 1953); In re Blackstone, 190 A. 597 (Del. Super. Ct. 1937).
302. Consider the curious dicta of State ex rel. Ware v. City of Miami, 107 So. 2d 387 (Fla. Dist. Ct. App. 1958), in which the court invalidated a city ordinance purporting to require written certification from the Florida State Welfare Board as a condition of city renewal of a nursery license. The third district went on to suggest that had the city included as part of its ordinance the guides or standards to be applied by the State Board in determining the applicant's fitness, the ordinance would have been valid. Id. at 388. There is of course no legal authority for a city to prescribe the standards which must be applied by a state board. Id. Even if the city had authority to bind a State Welfare Board in this way, it would be completely impractical to have a state board apply different standards to each nursery application depending on its city of origin. See also Comment, Constitutional Law - Validity of State Recovery Acts Adopting Federal Codes, 33 MICH. L. REV. 597 (1934), which suggested that the unconstitutionality of attempted state adoption of future federal administrative codes of fair competition formulated under the National Industrial Recovery Act might be avoided by inclusion of standards within the state legislation directed to the federal officers adopting the codes. The Comment did not discuss how the inclusion of "standards" that would not be consulted or applied by anyone could somehow affect constitutionality. Research uncovered no state recovery acts that attempted to include standards applicable to federal officers adopting the codes.
303. In re Opinion of the Justices, 133 N.E. 453, 454 (Mass. 1921).
304. See supra note 255 and accompanying text.
305. State v. Thompson, 627 S.W.2d 298 (Mo. 1982) (in which the control of a drug by the federal government triggered mandatory consideration of a substance, but no substance was automatically controlled in Missouri without the Missouri Division of Health rulemaking).
306. Hogen v. S.D. State Bd. of Transp., 245 N.W.2d 493 (S.D. 1976) (holding unconstitutional statutory direction to a state agency to comply with all future changes in federal billboard or junk yard laws); Seale v. McKennon, 336 P.2d 340 (Or. 1959) (holding unconstitutional statutory direction to a state agency to adopt as the law of Oregon the future laws of the United States and regulations of a federal agency).
307. N. Am. Safety Valve Indus., Inc. v. Wolgast, 672 F. Supp. 488 (D. Kan. 1987) (upholding a statute as not unconstitutional because the state agency was required to review changes to the adopted material made by private industry and to take further action to adopt them before they became Kansas law).
308. While the statute must contain sufficient criteria, how those criteria were actually applied to facts is not generally a subject for judicial scrutiny. In Cilento v. State, 377 So. 2d 663 (Fla. 1979), the Florida Supreme Court declined to examine what, if any, "independent fact-finding efforts" were conducted by the Florida Legislature in support of its decision to adopt federal schedules of controlled substances. The court noted, "Where a factual predicate is necessary to the validity of an enactment, it is to be presumed that the necessary facts were before the legislature." Id. at 665. The same principle is invoked in support of subsidiary legislation.
309. Lee v. State, 635 P.2d 1282 (Mont. 1981) (statute directing attorney general to proclaim speed limit required by federal law to receive federal highway funds was unconstitutional).
310. See Brock v. Superior Court, 71 P.2d 209 (Cal. 1937).
311. State v. Dougall, 570 P.2d 135 (Wash. 1977) (unconstitutional delegation occurred because statute permitted future federal designations of controlled substances to become controlled under state law by means of Board inaction or acquiescence).
312. See, e.g., FLA. STAT. §120.54(6) (2007) (providing a twenty-one day process for the adoption of federal standards).
313. CARROLL, supra note 1, at 172 (Alice).
314. Seale v. McKennon, 336 P.2d 340, 345-46 (Or. 1959).
315. Florida does not have a universal statutory construction provision relating to adoptions by reference, though it has adopted more focused provisions in a few instances. Several other states do have more universal statutory construction provisions relating to adoptions by reference. See supra Part IV.D.
316. While there may be rare instances when state legislatures actually oppose implementation of state programs consistent with federal standards, in the author's experience these are extremely rare. The mechanisms of contingent funding and partial preemption - those twin workhorses of cooperative federalism - usually provide ample incentive. Concern is more often with maintaining consistency with such federal standards without unconstitutionally abdicating state legislative authority as interpreted by the state's courts.
317. Some recent cases include: Young Partners, LLC v. Bd. of Educ., 160 P.3d 830 (Kan. 2007) (holding that adoption of statute by reference makes it as much a part of the later statute as though it had been incorporated at full length); Johnsen v. State, 269 Neb. 790 (Neb. 2005) (holding that the effect of a specific reference is the same as if the adopted language had been written out); Haw. Providers Network, Inc. v. AIG Haw. Ins. Co., Inc., 98 P.3d 233 (Haw. 2004) (holding that a general reference adopts prospectively future alterations including repeal of the incorporated law); Pentagon Acad., Inc. v. Ind. Sch. Dist. No. 1, 82 P.3d 587 (Okla. 2003) (finding that a reference statute adopts other statutes and makes them applicable to the subject of the legislation); Cloyd v. State, 943 So. 2d 149 (Fla. Dist. Ct. App. 2006) (holding a statute incorporating federal regulations to be adopted in the future unconstitutional to that extent); Jager v. Rostagno Trucking Co., Inc., 728 N.W.2d 467 (Mich. Ct. App. 2006) (holding that a referenced provision becomes part of the legislative enactment as it existed at the time of the legislation without subsequent amendments); Plastic Pipe & Fittings Ass'n v. Cal. Bldg. Standards Comm'n, 22 Cal. Rptr. 3d 393 (Cal. Ct. App. 2004) (suggesting the court would construe the statute to require affirmative government approval to avoid unconstitutional adoption of future changes to referenced building standards); Ball Corp. v. Fisher, 51 P.3d 1053 (Colo. Ct. App. 2001) (determining that a statute specifically incorporating enumerated provisions adopts them at the time of the adoption, without subsequent amendments, absent express legislative declaration to the contrary).