Supreme Court of Florida
                                  _____________

                                  No. SC13-1549
                                  _____________

                                       J.R.,
                                     Appellant,

                                         vs.

                           BARBARA PALMER, etc.,
                                 Appellee.

                                   [May 14, 2015]

LABARGA, C.J.

      In this case we consider three questions of law certified by the United States

Court of Appeals for the Eleventh Circuit concerning the agency review

requirements for the continued involuntary admission of developmentally disabled

individuals to residential services under chapter 393, Florida Statutes (2011). We

have jurisdiction. See art. V, § 3(b)(6), Fla. Const. Specifically, the Eleventh

Circuit certified the following questions:

      1) Does “support plan” review under Fla. Stat. § 393.0651 require the
      Agency for Persons with Disabilities to consider the propriety of a
      continued involuntary admission to residential services order entered
      under Fla. Stat. § 393.11?
      2) Is the Agency for Persons with Disabilities required, pursuant to
      Fla. Stat. § 393.0651 and/or Fla. Stat. § 393.11, to petition the circuit
      court for the release from an involuntary admission order in cases
      where the APD determines that the circumstances that led to the initial
      admission have changed?
      3) Does Fla. Stat. § 393.062 et. seq. provide a statutory mandate to
      meaningfully periodically review involuntary admissions to non-
      secure residential services consistent with the commitment schemes
      discussed in Parham v. J.R., 

, 

, 

(1979) and Williams v. Wallis, 

(11th Cir. 1984)?

J.R. v. Hansen (J.R. II), 

, 974 (11th Cir. 2013). For the reasons we

explain, we answer the first two certified questions in the negative and decline to

answer the third certified question.

                    FACTS AND PROCEDURAL HISTORY

      J.R. is an intellectually disabled man with an IQ of 56, who functions at the

level of a seven-year-old. In 2000, J.R. was charged with sexual battery in Lee

County, Florida. In 2001, the circuit court concluded that J.R. was incompetent to

stand trial and involuntarily committed him to the Department of Children and

Family Services.1,2 In 2004, J.R. was involuntarily admitted to nonsecure

residential services under section 393.11, Florida Statutes. The involuntary

admission order does not include an end date for J.R.’s involuntary admission.




      1. Prior to October 2004, the Agency for Persons with Disabilities existed as
the Developmental Disabilities Program within the Department of Children and
Family Services.

      2. In 2007, the Legislature authorized the use of the name Department of
Children and Families. See ch. 2007-174, Laws of Fla.


                                        -2-
      Upon his admission to nonsecure residential services, J.R. was given a

support plan, and that plan is periodically reviewed and revised under section

393.0651, Florida Statutes. Under section 393.0651, the Agency for Persons with

Disabilities (Agency) is required to conduct an annual support plan review for each

person who receives services from the Agency. As a result, while J.R. has lived in

multiple group homes since his commitment, the limitations on his activities have

varied—and will continue to change—with the periodic revisions to his support

plan. The circuit court, however, has not held a hearing on J.R.’s continued

involuntary admission since 2005.

      On August 25, 2011, J.R. filed suit under 42 U.S.C. §§ 1983 and 1988 in the

United States District Court for the Northern District of Florida against the

Director of the Agency. Section 1983 provides a cause of action against any

person who deprives another of rights under the color of law. Section 1988

governs proceedings in vindication of civil rights and provides for prevailing party

attorney’s fees for section 1983 claims. J.R. sought a declaratory judgment that

Florida’s statutory scheme for involuntarily admitting intellectually disabled

persons to residential services under section 393.11, Florida Statutes, is facially

unconstitutional. J.R. argued that the statutory scheme violates the Due Process

Clause of the Fourteenth Amendment because it does not provide people who have

been involuntarily admitted to nonsecure residential services with periodic review


                                         -3-
of their continued involuntary confinement by a decision-maker who has authority

to release them. Both J.R. and the Agency filed motions for summary judgment.

      The district court granted the Agency’s motion for summary judgment and

denied J.R.’s motion for summary judgment. J.R. v. Hansen (J.R. I), No.

4:11cv417-WS, 

, at *14-15 (N.D. Fla. May 22, 2012). The

court noted that a plaintiff in a procedural due process claim “must prove three

elements: (1) a deprivation of a constitutionally-protected liberty or property

interest; (2) state action; and (3) constitutionally-inadequate process.” 

The court concluded that the first two elements—deprivation of a constitutionally

protected liberty interest and state action—were “easily proved.” 

However, after analyzing section 393.11 in light of Mathews v. Eldridge, 

(1976), Parham v. J.R., 

(1979), and Williams v. Wallis, 

(11th Cir. 1984), the court determined that the third element—

constitutionally inadequate process—was not established. J.R. I, 

at *13. As a result, the district court concluded that section 393.11,

Florida Statutes, is constitutional. 

The court explained:

             Here, the Florida Legislature has fashioned what, in essence, is
      a nonadversarial scheme that (1) allows section 393.11 clients and
      their family members or advocates to provide input into the
      development and annual revision of support plans that detail “the most
      appropriate, least restrictive, and most cost-beneficial environment for
      accomplishment of the objectives for client progress and a
      specification of all services authorized,” § 393.0651; (2) authorizes
      [the Agency]—through the advice of specialists and without court

                                         -4-
      involvement—to decide what is “the most appropriate, least
      restrictive, and most cost-beneficial environment” suitable for a
      client’s individual needs and behaviors; (3) authorizes [the Agency]—
      with client input and without court approval—to move a client to
      progressively less restrictive environments as the client’s needs and
      behaviors change; and (4) places an implicit burden on [the Agency],
      rather than the client, to petition the court for release from an order of
      involuntary admission when the conditions for release are indicated.

      J.R. appealed the district court’s decision to the Eleventh Circuit. After

explaining the elements of a claim brought under section 1983, the Eleventh

Circuit concluded that “the first two elements of the test for a claim of the denial of

due process are easily established here.” J.R. 

. The Eleventh

Circuit then addressed whether section “393.11 provides constitutionally adequate

process” regarding review of involuntary admission orders. 

Circuit noted that J.R. did not challenge the constitutionality of his initial

involuntary admission. 

n.2.

      The Eleventh Circuit began its analysis by noting that “[t]he [Agency] has

pointed to nothing explicit in the statute indicating that an obligation exists and has

offered no evidence of procedures in place to require periodic review of the

involuntary commitment status of these people.” 

Based primarily on

Parham and Williams, the Eleventh Circuit determined that there are “at least four

guiding principles . . . in analyzing Florida’s involuntary admission to residential

services scheme.” 

First, some form of periodic review is required to

                                          -5-
protect against the erroneous deprivation of liberty. 

judicial review is not necessary to protect against the erroneous deprivation of

liberty where medical professionals are well positioned and mandated to consider

the propriety of ongoing commitment.” 

judicial review is

not necessary . . . where medical professionals are well positioned and mandated to

act when an ongoing commitment is no longer proper.” 

And “[f]ourth,

the availability of adversarial judicial review in the form of habeas proceedings

serves as a backup plan to protect against erroneous deprivations of liberty.” 

Circuit expressed doubt regarding whether Florida’s scheme

satisfies these factors. 

First, the Eleventh Circuit questioned

whether the statutes require the Agency to periodically review involuntary

admission orders. 

Section 393.0651 does not explicitly require the

Agency to periodically review involuntary admission orders to determine whether

an admitted person continues to meet the standard for involuntary admission set

out in section 393.11. 

393.0651 requires the Agency to

annually review whether the client has been placed in “the most appropriate, least

restrictive, and most cost-beneficial environment for accomplishment of the

objectives for client progress.” 

Based on this discrepancy, the Eleventh

Circuit concluded that “periodic support plan reviews consider only half of the




                                         -6-
ultimate question of whether it is necessary for someone to be involuntarily

admitted to residential services.” 

      Second, the Eleventh Circuit concluded that section 393.0651 “does not

provide procedures for the [Agency] if it were to decide someone should be

released from an involuntary admission order.” 

Circuit

explained that “[n]othing on the face of § 393.0651 mandates that the [Agency],

having found a client to no longer be a danger to himself or to others, should

petition the circuit court [for a client’s release], the only body with the power to

alter the order.” 

pointed out that other sections in chapter 393

require judicial review of “an involuntary admission order to non-secure residential

services” under specific circumstances involving minors. 

393.11(9)(b), 393.115, Fla. Stat.). The Eleventh Circuit also noted “that the

Florida legislature has required periodic judicial review in other contexts,” such as

secure detention of intellectually disabled persons under section 916.303(3),

Florida Statutes, involuntary commitment of persons with mental illness under

sections 394.4655(7) and 394.467(7), Florida Statutes, and involuntary

commitment of sexually violent predators under sections 394.918(1), (3), Florida

Statutes. J.R. 

.

      The Eleventh Circuit certified three questions to this Court because it was

“not comfortable merely affirming [the district court’s] ruling based on implied


                                         -7-
obligations not explicit on the face of the statute,” and the Florida Supreme Court,

rather than a federal court, is “the arbiter[] of Florida law.” 

In the

analysis that follows, we first set out the arguments presented by J.R. and the

Agency. We then review the specific relevant provisions of chapter 393 and

answer the first two certified questions in the negative. Finally, we explain why

we decline to answer the third certified question.

                             PARTIES’ ARGUMENTS

      J.R. contends that each of the certified questions should be answered in the

negative. He argues that the first certified question should be answered in the

negative because support plan review under section 393.0651, Florida Statutes

(2011), does not require the Agency to consider the continued propriety of an

involuntary admission order. J.R. then argues that the second certified question

should be answered in the negative because neither section 393.0651 nor section

393.11 requires the Agency to petition the circuit court for an individual’s release

from an involuntary admission order when the circumstances that led to the initial

involuntary admission have changed. Finally, J.R. argues that the third certified

question should be answered in the negative because chapter 393 does not provide

a statutory mandate for meaningful periodic review of involuntary admission

orders in accordance with Parham and Williams.




                                          -8-
      The Agency argues that each of the certified questions should be answered

in the affirmative because the obligations implicit in sections 393.0651 and 393.11

require the Agency to review the continued propriety of an initial involuntary

admission order during annual support plan review and petition the circuit court if

an individual’s circumstances have changed to the point that involuntary admission

is no longer appropriate. The Agency maintains that support plan review provides

the necessary meaningful periodic review. The Agency further contends that this

Court is required to interpret sections 393.0651 and 393.11 in a way that upholds

their constitutionality.

                                APPLICABLE LAW

      Chapter 393, Florida Statutes (2011), addresses the treatment of

developmentally disabled individuals. A “client” of the Agency is “any person

determined eligible by the agency for services under this chapter.” § 393.063(5),

Fla. Stat. (2011). The Agency provides both voluntary and involuntary services to

persons with developmental disabilities. See §§ 393.065, 393.11, Fla. Stat. (2011).

      Section 393.11 governs the involuntary admission of developmentally

disabled individuals to residential services. In order for an individual to be

involuntarily admitted to residential services, the circuit court must find that:

            1. The person is mentally retarded or autistic;
            2. Placement in a residential setting is the least restrictive and
      most appropriate alternative to meet the person’s needs; and


                                         -9-
             3. Because of the person’s degree of mental retardation or
      autism, the person:
             a. Lacks sufficient capacity to give express and informed
      consent to a voluntary application for services pursuant to s. 393.065
      and lacks basic survival and self-care skills to such a degree that close
      supervision and habilitation in a residential setting is necessary and, if
      not provided, would result in a real and present threat of substantial
      harm to the person’s well-being; or
             b. Is likely to physically injure others if allowed to remain at
      liberty.

§ 393.11(8)(b), Fla. Stat. (2011). Within forty-five days of receiving an order

involuntarily admitting a person to residential services, the Agency must “provide

the court with a copy of the person’s family or individual support plan and copies

of all examinations and evaluations, outlining the treatment and rehabilitative

programs. The agency shall document that the person has been placed in the most

appropriate, least restrictive and cost-beneficial residential setting.”

§ 393.11(8)(e), Fla. Stat. (2011). The circuit court that enters the initial

involuntary admission order

      has continuing jurisdiction to enter further orders to ensure that the
      person is receiving adequate care, treatment, habilitation, and
      rehabilitation, including psychotropic medication and behavioral
      programming. Upon request, the court may transfer the continuing
      jurisdiction to the court where a client resides if it is different from
      where the original involuntary admission order was issued. A person
      may not be released from an order for involuntary admission to
      residential services except by the order of the court.

§ 393.11(11), Fla. Stat. (2011). An involuntary admission order may be appealed

by “[a]ny party to the proceeding who is affected by an order of the court,


                                         - 10 -
including the agency.” § 393.11(12), Fla. Stat. (2011). In addition, an

involuntarily admitted person may file a petition for a writ of habeas corpus “to

question the cause, legality, and appropriateness of the person’s involuntary

admission” at any time. § 393.11(13), Fla. (2011).

      All clients of the Agency must have their support plans reviewed and revised

annually. § 393.0651(7), Fla. Stat. (2011). Section 393.0651 governs support plan

review for clients enrolled in the Agency’s services and states that:

      Each plan must include the most appropriate, least restrictive, and
      most cost-beneficial environment for accomplishment of the
      objectives for client progress and a specification of all services
      authorized. The plan must include provisions for the most appropriate
      level of care for the client. Within the specification of needs and
      services for each client, when residential care is necessary, the agency
      shall move toward placement of clients in residential facilities based
      within the client’s community. The ultimate goal of each plan,
      whenever possible, shall be to enable the client to live a dignified life
      in the least restrictive setting, be that in the home or in the
      community.

“In developing a client’s annual family or individual support plan, the individual or

family with the assistance of the support planning team shall identify measurable

objectives for client progress and shall specify a time period expected for

achievement of each objective.” § 393.0651(6), Fla. Stat. (2011). “The agency

shall develop and specify by rule the core components of support plans.”

§ 393.0651(1), Fla. Stat. (2011). Clients or their parents, guardians, or client




                                        - 11 -
advocates are permitted to administratively challenge the results of a support plan

or a revision to a support plan. § 393.0651(8), Fla. Stat. (2011).

                                    ANALYSIS

      In the first two certified questions, this Court is asked to interpret provisions

of chapter 393, Florida Statutes. In Diamond Aircraft Industries, Inc. v.

Horowitch, 

, 367 (Fla. 2013), we explained that:

      Legislative intent is the polestar that guides our analysis regarding the
      construction and application of the statute. See Bautista v. State, 

, 1185 (Fla. 2003). Our statutory analysis begins with the
      plain meaning of the actual language of the statute, as we discern
      legislative intent primarily from the text of the statute. See Heart of
      Adoptions, Inc. v. J.A., 

, 198 (Fla. 2007). If statutory
      language is “clear and unambiguous and conveys a clear and definite
      meaning, there is no occasion for resorting to the rules of statutory
      interpretation and construction; the statute must be given its plain and
      obvious meaning.” Holly v. Auld, 

, 219 (Fla. 1984)
      (quoting A.R. Douglass, Inc. v. McRainey, 

, 159 (Fla.
      1931)).

Further, “courts of this state are ‘without power to construe an unambiguous statute

in a way which would extend, modify, or limit, its express terms or its reasonable

and obvious implications. To do so would be an abrogation of legislative

power.’ ” Holly v. 

(quoting Am. Bankers Life Assurance

Co. of Fla. v. Williams, 

, 778 (Fla. 1st DCA 1968)). When a

specific provision is not included in a statute, we have explained that:

            “[W]here the legislature has inserted a provision in only one of
      two statutes that deal with closely related subject matter, it is
      reasonable to infer that the failure to include that provision in the

                                        - 12 -
      other statute was deliberate rather than inadvertent.” 2B Norman J.
      Singer & J.D. Shambie Singer, Statutes and Statutory Construction
      § 51:2 (7th ed. 2008). “In the past, we have pointed to language in
      other statutes to show that the legislature ‘knows how to’ accomplish
      what it has omitted in the statute [we were interpreting].” Cason v.
      Fla. Dep’t of Mgmt. Services, 

, 315 (Fla. 2006); see
      also Horowitz v. Plantation Gen. Hosp. Ltd. P’ship, 

,
      185 (Fla. 2007); Rollins v. Pizzarelli, 

, 298 (Fla. 2000).

Olmstead v. FTC, 

, 82 (Fla. 2010).

      We reject the Agency’s argument that we are required to find the implied

obligations in sections 393.0651 and 393.11 because we must interpret the statutes

in a way that upholds their constitutionality. Certified questions one and two ask

us to interpret the provisions of section 393.0651 and 393.11 in order to assist the

Eleventh Circuit in resolving this case. Certified questions one and two do not ask

us to resolve the ultimate issue in this case—whether section 393.11 is facially

unconstitutional. See Internet Solutions Corp. v. Marshall, 

, 1206

(Fla. 2010) (distinguishing “the subject of the certified question from the issue of

whether exercising jurisdiction over Marshall would violate due process”).

                               Support Plan Review

      We answer the Eleventh Circuit’s first certified question in the negative

because support plan review under section 393.0651 does not require the Agency

to consider the continued propriety of an involuntary admission order entered

under section 393.11. As the Agency conceded before the Eleventh Circuit, the




                                        - 13 -
requirements for involuntary admission are not explicitly discussed anywhere in

section 393.0651. See J.R. 

.

      Section 393.0651 provides a comprehensive scheme regarding annual

support plan review for the Agency’s clients. Section 393.0651 details who is

involved in a client’s annual support plan review, the factors that must be

considered during the support plan review, and the order in which the various

residential placement options must be considered. Section 393.0651 also requires

that the support plan establish measurable goals for client progress; support plans

for clients who are public school students are coordinated with individual

education plans; and the Agency promulgate rules regarding the core components

of support plans. The statutory scheme also affords the right to an administrative

appeal of the decision reached following annual review of a support plan. Even

though section 393.0651(1) mandates that the Agency “shall develop and specify

by rule the core components of support plans,” the Agency has not pointed to any

rule in its brief to this Court or the Eleventh Circuit that requires consideration of

whether the elements required for involuntary admission are still satisfied during a

client’s annual support plan review. See J.R. 

.

      Nothing within the text of section 393.0651 can be construed to include

consideration of the elements that must be established in order for a person to be

involuntarily committed under section 393.11(8)(b). Nor can section 393.0651 be


                                         - 14 -
construed to include consideration of whether a client is a danger to himself or

others to satisfy the third element for involuntary admission in section

393.11(8)(b)3. All clients of the Agency—both voluntarily and involuntarily

admitted clients—receive annual support plan review. Nothing in section

393.0651 indicates that support plan review for involuntarily admitted clients

differs in any way from support plan review for voluntarily admitted clients.

      The Agency’s reliance on section 393.0651’s requirement that each support

plan “must include the most appropriate, least restrictive, and most cost-beneficial

environment for accomplishment of the objectives for client progress and a

specification of all services authorized” does not take into account the continued

appropriateness of an involuntary admission order. The text of section

393.11(8)(b)2, which sets forth the second element that must be found by a circuit

judge in order for a person to be involuntarily admitted, substantially overlaps with

the requirement regarding support plan review relied on by the Agency—

“[p]lacement in a residential setting is the least restrictive and most appropriate

alternative to meet the person’s needs.” If the Legislature intended for support

plan review to require consideration of all of the elements for involuntary

admission, section 393.0651 would have expressly provided for it. See 

.




                                        - 15 -
      The Agency contends that the statement of legislative purpose behind

chapter 393 supports the finding of an implied obligation; however, the legislative

purpose does not support that proposition. The legislative purpose stated in section

393.062 provides

      the development and implementation of community-based services
      that will enable individuals with developmental disabilities to achieve
      their greatest potential for independent and productive living, enable
      them to live in their own homes or in residences located in their
      communities, and permit them to be diverted or removed from
      unnecessary institutional placements.

The legislative purpose fails to address continued review of the appropriateness of

an involuntary admission order because it does not take into account section

393.11(8)(b)3, which requires finding that an individual would be a danger to

himself or others if he is allowed to remain at liberty. Section 393.0651 contains a

stated goal similar to the legislative purpose discussed above: “The ultimate goal

of each plan, whenever possible, shall be to enable the client to live a dignified life

in the least restrictive setting, be that in the home or in the community.” Like

chapter 393’s statement of legislative purpose, this goal does not address or imply

the continued review of the appropriateness of an involuntary admission order.

The Agency’s argument that support plan review includes an implied requirement

to review whether an involuntarily admitted person still qualifies for involuntary

admission would require this Court to impermissibly rewrite the requirements of

support plan review adopted by the Legislature.

                                         - 16 -
      Accordingly, we answer the first certified question in the negative because

support plan review under section 393.0651 does not require the Agency to

consider the continued propriety of an involuntary admission order entered under

section 393.11.

               Circuit Court Release from Involuntary Admission

      We next answer the Eleventh Circuit’s second certified question in the

negative because the Agency is not required under either section 393.0651 or

section 393.11, Florida Statutes, to petition the circuit court for a person’s release

from an involuntary admission order in cases where the Agency determines that

the circumstances that led to the initial admission order have changed. Neither

section 393.0651 nor section 393.11 can be construed to impose an implicit

obligation on the Agency to petition the circuit court for a person’s release from an

involuntary admission order when the Agency determines that the circumstances

that led to the initial admission order have changed.

      Section 393.11(11) does not indicate who may petition the circuit court for a

person’s release from an involuntary admission; however, other subsections of

section 393.11 explicitly provide for two circumstances for challenging

involuntary admission orders. First, section 393.11(13) explicitly permits an

involuntarily admitted person to petition the circuit court for a writ of habeas

corpus to challenge the appropriateness of his involuntary admission. Second,


                                         - 17 -
section 393.11(9)(b) explicitly provides that “[a]ny minor involuntarily admitted to

residential services shall, upon reaching majority, be given a hearing to determine

the continued appropriateness of his or her involuntary admission.” Section

393.115(1)(b) builds on the procedure for dealing with minors in residential

services upon reaching the age of majority. It provides that in the case of a

voluntarily admitted minor turning eighteen, “[i]f the resident appears to meet the

criteria for involuntary admission to residential services, as defined in s. 393.11,

the agency shall file a petition to determine the appropriateness of continued

residential placement on an involuntary basis.” § 393.115(1)(b), Fla. Stat. (2011).

As such, the Legislature explicitly provided for the Agency to file a petition with

the circuit court to determine the appropriateness of involuntary admission in the

case of a voluntarily admitted minor turning eighteen.

      The Legislature, however, did not include a provision in section 393.11

regarding the Agency filing a petition with the circuit court under any

circumstances. Instead, section 393.11 provides one reference to a petition being

filed with the circuit court—the involuntarily admitted person’s right to file a

petition for a writ of habeas corpus challenging an involuntary admission order

contained in section 393.11(13). Further, section 393.11 provides for one

circumstance—a minor reaching the age of majority—in which an involuntarily

admitted person is entitled to a review hearing. Nothing in section 393.11


                                        - 18 -
indicates that the Agency has an obligation to file a petition with the circuit court

for any reason. Because requiring the Agency to file a petition with the circuit

court would impose an obligation on the Agency to undertake a specific act not

required by statute, finding an implied obligation within section 393.11 that

requires the Agency to file a petition based on an involuntary admission order no

longer being appropriate would modify the express terms of an unambiguous

statute.

       Similarly, section 393.0651 does not contain any provisions that can be

construed as requiring the Agency to file a petition with the circuit court for any

reason. Section 393.0651 requires the Agency to do multiple things, such as

consider specific factors during a support plan review, consider various residential

placement options in a specified order, establish measurable goals for a client’s

progress, coordinate support plans for clients who are public school students with

individual education plans, promulgate rules regarding the core components of

support plans, and annually provide a written report to a client or the client’s

parent, guardian, or client advocate regarding the client’s “habilitative and medical

progress.” Nowhere, though, in section 393.0651, is the Agency required—or

even advised—to petition the circuit court for any reason.

       The only reference to any type of review procedure mentioned in section

393.0651 is that a client or the client’s parent, guardian, or client advocate may


                                        - 19 -
seek administrative review of a support plan or the outcome of an annual support

plan review. However, a successful administrative challenge to a support plan

would presumably lead to a revised support plan rather than a petition being filed

by the Agency with the appropriate circuit court for the client’s release.

      While neither section 393.0651 nor section 393.11 mentions who may

petition the circuit court for review of an involuntary admission order when a

client’s circumstances change, other provisions of Florida law specifically address

the periodic judicial review of various types of involuntary commitment orders.

The Legislature has specifically addressed periodic judicial review in the context

of secure detention of intellectually disabled persons under section 916.303(3),

involuntary commitments of persons with mental illness under sections

394.4655(7) and 394.467(7), Florida Statutes, and involuntary commitments of

sexually violent predators under sections 394.918(1), (3), Florida Statutes.

Therefore, in certain contexts, the Legislature has exercised its prerogative to

require periodic judicial review of involuntary commitment orders. See 

. And we decline to assume that the Legislature forgot how to

address periodic judicial review of involuntary admissions to residential services

under chapter 393.

      Further, as discussed above regarding the first certified question, the Agency

is not required to even consider all of the elements required for involuntary


                                        - 20 -
admission when conducting an annual support plan review under section 393.0651.

Because requiring the Agency to file a petition with the circuit court would impose

an obligation on the Agency to undertake a specific act not required by statute,

finding an implied obligation within section 393.0651 that requires the Agency to

petition the circuit court for the release from an involuntary admission order would

modify the express terms of an unambiguous statute. Accordingly, we answer the

second certified question in the negative because nothing in either section

393.0651 or section 393.11 can be construed to impose an implicit obligation on

the Agency to petition the circuit court for a person’s release from an involuntary

admission order when the Agency determines that the circumstances that led to the

initial admission order have changed.

                  Analysis of Federal Constitutional Case Law

      We decline to answer the Eleventh Circuit’s third certified question. Unlike

the first two certified questions that ask us to interpret provisions of chapter 393,

the third certified question asks us to analyze chapter 393 in light of federal

constitutional case law and effectively resolve J.R.’s underlying federal

constitutional claim. Because this certified question asks us to interpret federal

law, we decline to answer it.

                                   CONCLUSION




                                         - 21 -
      Based on the foregoing, we answer certified questions one and two in the

negative and decline to answer certified question three. Having answered the first

two certified questions and declining to answer the third, we return this case to the

United States Court of Appeals for the Eleventh Circuit.

      It is so ordered.

LEWIS, QUINCE, POLSTON, and PERRY, JJ., concur.
PARIENTE, J., dissents with an opinion.
CANADY, J., dissents with an opinion, in which PARIENTE, J., concurs.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

PARIENTE, J., dissenting.

      I agree with the statutory construction analysis set forth in Justice Canady’s

dissent, which appropriately relies upon both the plain language of the statute and

the interpretation of the statutory phrase “least restrictive” in the context of the

statutory scheme to explain why the well-reasoned opinion of Judge Stafford in

J.R. v. Hansen, No. 4:11cv417-WS, 

(N.D. Fla. May 22, 2012),

correctly interpreted chapter 393, Florida Statutes. I write to add to that matrix of

statutory construction the cardinal principle that statutes should, whenever

possible, be construed to ensure a constitutional outcome.

      The clear and indisputable result of the majority’s statutory interpretation,

despite the majority’s avoidance of it, will be a finding that the statute is

unconstitutional. Yet, even though the constitutional question is at the heart of this

                                         - 22 -
case, the majority declines in its statutory interpretation analysis to consider one of

the fundamental principles of statutory construction—that courts must strive “to

construe challenged legislation to effect a constitutional outcome whenever

possible.” Scott v. Williams, 

, 384 (Fla. 2013) (quoting Fla. Dep’t

of Revenue v. Howard, 

, 642 (Fla. 2005)). Further, courts are

obligated to give statutes “a fair construction that is consistent with the federal and

state constitutions as well as with the legislative intent.” Caple v. Tuttle’s Design-

Build, Inc., 

, 51 (Fla. 2000) (quoting State v. Stalder, 

, 1076 (Fla. 1994)).

      The majority claims that because the first two certified questions do not ask

this Court to resolve the ultimate issue of whether the statute is facially

unconstitutional, it does not need to apply the presumption of constitutionality.

See majority op. at 13 (declining to apply the principle that statutes should be

interpreted in a way to uphold their constitutionality because the first two certified

questions do not ask this Court to resolve the ultimate issue of constitutionality).

However, the third certified question, which the majority declines to answer, asks

exactly whether this statute is constitutional, and that is the ultimate issue the

Eleventh Circuit Court of Appeals was asked to decide. See J.R. v. Hansen, 

, 971-73 (11th Cir. 2013).




                                         - 23 -
      I simply do not see how the majority can ignore the constitutional

implications of its analysis of a state statute that is being specifically attacked as

facially unconstitutional and fail in its statutory interpretation to view the statute

through the lens of the presumption of constitutional validity. For all these

reasons, I join in Justice Canady’s dissent. I would answer the first two certified

questions in the affirmative and ensure that this Court’s analysis of the statute is

faithful to our obligation to construe statutes in a manner that upholds their

constitutionality.

CANADY, J., dissenting.

      I disagree with the majority’s decision regarding the first two questions

certified by the United States Court of Appeals for the Eleventh Circuit. I would

answer both of those questions in the affirmative. I agree, however, with the

majority’s decision to decline to answer the third certified question, which is a

question of federal law rather than Florida law.

      The powers and duties of a state agency “include both those expressly given

and those given by clear and necessary implication from the provisions of the

statute” under which the agency operates. City Gas Co. v. Peoples Gas Sys., Inc.,

, 436 (Fla. 1965). It is an elementary principle of Florida law that

“[w]hen authority is given by statute to accomplish a stated governmental purpose,

there is also given by implication authority to do everything necessary to


                                         - 24 -
accomplish the purpose that is not a violation of law or public policy.” Bailey v.

Van Pelt, 

, 792 (Fla. 1919). These principles regarding the

interpretation of the statutory powers and duties of governmental entities are, of

course, based on a more general principle regarding the interpretation of statutory

rights (or powers) and duties: “ ‘If a statute grants a right or imposes a duty, it also

confers, by implication, every particular power necessary for the exercise of the

one or the performance of the other.’ . . . That which is clearly implied is as much

a part of the law and is as effectual as that which is expressed.” Girard Trust Co. v.

Tampashores Dev. Co., 

, 788 (Fla. 1928) (quoting Newcomb v. City of

Indianapolis, 

, 921-22 (Ind. 1895)). A statutory duty obviously carries

with it a duty to take the particular steps reasonably necessary for the performance

of the duty.

      In his order granting the Agency’s motion for summary judgment, Judge

Stafford made the crucial determination that the statutory scheme “places an

implicit burden on [the Agency], rather than the client, to petition the court for

release from an order of involuntary admission when the conditions for release are

indicated.” J.R. v. Hansen, No. 4:11cv417-WS, 

, at *14 (N.D.

Fla. May 22, 2012). The correctness of this determination flows ineluctably from

three indisputable points. The first two points are based on express provisions of




                                         - 25 -
the statute. The third point is based on the meaning of “least restrictive” in the

context of the statute.

      First, section 393.0651(7), Florida Statutes (2011), requires that the Agency

provide for an annual revision of each client’s individual support plan. There is no

suggestion that a revised individual support plan is not intended to determine the

provision of services by the Agency. Second, under section 393.0651, a crucial

focus of the individual support plan process is the identification of the least

restrictive environment for the provision of services to a client. Section 393.0651

leaves no doubt about the importance of identifying the least restrictive

environment for the provision of services:

      Each plan must include the most appropriate, least restrictive, and
      most cost-beneficial environment for accomplishment of the
      objectives for client progress . . . . The ultimate goal of each plan,
      whenever possible, shall be to enable the client to live a dignified life
      in the least restrictive setting, be that in the home or in the
      community.
§ 393.0651 (Emphasis added). Third, services provided to an involuntarily

admitted individual are provided in a more restrictive setting than are services

provided to individuals who are not involuntarily admitted. Indeed, the most

restrictive setting for the provision of services is under an involuntary admission.

      To reject Judge Stafford’s conclusion, it must be assumed that the

Legislature intended to require the Agency to have individual support plans

developed and revised with a focus on ensuring that services are provided in the


                                         - 26 -
least restrictive appropriate setting but did not intend to (a) require the annual

review process to take into account that the context of an involuntary admission is

more restrictive than other contexts, or (b) require the Agency to take the steps

necessary to implement an individual support plan by seeking termination of an

individual’s involuntary admission when the statutory requirements for involuntary

admission are no longer satisfied. This is nonsensical.

      There is no cogent reason that the annual review process should be

allowed—or required—to ignore the undeniable reality that an involuntary

admission is more restrictive than other contexts in which services are provided.

The annual review process for an involuntarily admitted individual can only

determine the “least restrictive” appropriate setting for services if it considers

whether the legal requirements for involuntary admission are still satisfied.

Similarly, once it is determined that a less restrictive context than involuntary

admission is the appropriate context for the provision of services, it necessarily

follows that the Agency has a duty to take the steps necessary to ensure that

services are provided in the less restrictive context, including petitioning the court

for termination of the involuntary admission.

      The “stated governmental purpose,” 

, of the statute is

the provision of services in “the most appropriate, least restrictive” setting

possible, section 393.0651, Fla. Stat. (2011). The duty placed on the Agency to


                                         - 27 -
carry out that purpose necessarily carries with it “by implication” both the

authority and the duty “to do everything necessary to accomplish the purpose that

is not a violation of law or public policy.” 

. The Agency’s

consideration in the annual individual support plan review process of the

appropriateness of continued involuntary admission and the Agency’s action to

obtain judicial termination when continued involuntary admission no longer

constitutes the “most appropriate, least restrictive” environment for the provision

of services are both essential to carrying out the unequivocal mandate of the

statute. § 393.0651, Fla. Stat. (2011). There is no express provision of law or any

public policy that stands in the way of such action by the Agency. Recognizing

these aspects of the statutory scheme is simply acknowledging the plain import of

the statute. Failing to recognize them results from a cramped, unreasonable

reading of the statutory text.

      The view that the legislative purpose set forth in section 393.0651 “does not

take into account section 393.11(8)(b)3, which requires finding that an individual

would be a danger to himself or others if he is allowed to remain at liberty[,]”

majority op. at 16, improperly imports incoherence into chapter 393. There is

absolutely no authority, however, to support the assumption that in enacting one

statutory provision the Legislature is ignorant of other related statutory provisions.

On the contrary, it is axiomatic that the Legislature is presumed to know the law.


                                        - 28 -
See Holmes Cnty. Sch. Bd. v. Duffell, 

, 1179 (Fla. 1995). And it

is axiomatic that absent a clear inconsistency courts “must . . . construe related

statutory provisions in harmony with one another.” Villery v. Fla. Parole & Prob.

Comm’n., 

, 1111 (Fla. 1980) (superseded by statute as recognized

by Van Tassel v. Coffman, 

, 529 (Fla. 1986)). The various

provisions of chapter 393 therefore must be read harmoniously in light of the

whole chapter.

      Finally, the duty of the Agency under section 393.0651 is in no way

circumscribed by the statutory provisions related to judicial review of involuntary

admissions when a client reaches the age of majority, see § 393.115, Fla. Stat.

(2011), or the provisions authorizing an involuntarily admitted person to petition

for release, see § 393.11(13), Fla. Stat. (2011). These specific provisions are in no

way inconsistent with the broad duty imposed by section 393.0651. The

implication that they limit the reach of the duty imposed by section 393.0651 is not

reasonable. That implication effectively rewrites the clearly established statutory

duty of the Agency under section 393.0651. The annual review process is a critical

feature of the statutory scheme designed to ensure the ongoing protection of the

rights of the Agency’s clients. It is neither necessary nor appropriate to truncate

that process because the Legislature has adopted other specific statutory measures

to help protect the rights of clients in particular circumstances.


                                         - 29 -
      I therefore dissent.

PARIENTE, J., concurs.

Certified Question of Law from the United States Court of Appeals for the
Eleventh Circuit - Case No. 12-14212

Peter P. Sleasman and Kristen Cooley Lentz of the Florida Institutional Legal
Services Project, Florida Legal Services, Inc., Newberry, Florida,

      for Appellant

Pamela Jo Bondi, Attorney General and Allen C. Winsor, Solicitor General,
Tallahassee, Florida; and Juan Ricardo Collins of the Agency for Persons with
Disabilities, Tallahassee, Florida,

      for Appellee




                                      - 30 -