Justin Green v. Alachua County

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-1661 _____________________________ JUSTIN GREEN, Appellant, v. ALACHUA COUNTY, Appellee. _____________________________ On appeal from the Circuit Court for Alachua County. Donna M. Keim, Judge. June 11, 2021 TANENBAUM, J. 1 From May 2020 until around mid-May 2021, anyone residing in or visiting Alachua County has found himself under the yoke of a mask mandate, accomplished through a series of emergency orders from the chair of the board of county commissioners. Under these fiats, any person in the county had to wear a government- approved face-covering to patronize a restaurant, grocery store, or retail establishment; visit or work on a construction site; or use 1 Judge Tanenbaum substituted in for Judge Makar after oral argument had taken place in this case, but he has viewed the recording of that argument—and of course has considered the briefs—in full. public transit. The diktats also required that a person cover his face in any location “where social distancing measures are not possible.” One consequence for being caught without a mask was a fine. Another consequence was being subjected to whispering informants, impelled by county-designed publicity like the following proposed signage encouraging citizens to inform on their disobedient neighbors: The threat of government-sponsored shaming was not an idle one. The chairman who issued the original mask mandate stated publicly that “masks are the only outwardly visible signal that you are contributing to the solution,” and that “masks are also a sign of respect that you recognize [essential workers’] risk and are doing something to lower it.” Justin Green sued the county to challenge the mask mandate, which until recently seemed like it might never end. 2 Green 2 Green recently suggested this matter is now moot, but we disagree. At the beginning of May, the Governor issued another COVID-19-emergency executive order, this one Executive Order 21-102. That order purports to “eliminate[] and supersede[] all local COVID-19 restrictions and mandates on individuals and businesses.” Fla. Exec. Order 21-102 § 1 (May 3, 2021); see also id. § 2 (purporting to eliminate and supersede any local emergency 2 argues, among other points, that the county’s command that he wear something on his face violated his fundamental right to order or ordinance that imposes “restrictions or mandates upon businesses or individuals due to the COVID-19 emergency”); § 3 (prohibiting local governments from renewing or enacting any such “restrictions or mandates”). While the State seemingly continues to be governed more by a flurry of state and local orders, and less by statutes and ordinances, this opinion offers no comment on the effect the Governor’s order may have on local mandates like the one at issue here. Still, Green advises that the county recently failed to renew (one more time, at least, after many previous renewals) its continuing local state of emergency. Even though the latest mask mandate was to stay in effect “until Alachua County no longer has a local state of emergency,” Alachua Cnty. Emergency Order 2021- 13, § 5 (March 22, 2021), the latest gubernatorial executive order expressly does not preclude the county from enacting an actual ordinance, “pursuant to regular enactment procedures,” containing the same mask mandate, provided the enacted mandate is not “based on a local state of emergency or on emergency enactment procedures due to the COVID-19 emergency.” Fla. Exec. Order 21-102, § 4. Because of the nature of the various emergency orders that we have seen and the county’s continued commitment to public mask- wearing, we are not convinced that this is the last that we will see of this issue. We conclude, then, that this case fits within the exception to the mootness doctrine, which is “for controversies that are capable of repetition, yet evading review.” Morris Publ’g Grp., LLC v. State, 136 So. 3d 770, 776 (Fla. 1st DCA 2014) (internal quotation omitted); cf. Tandon v. Newsom, 141 S. Ct. 1294, 1297 (2021) (per curiam) (noting that “even if the government withdraws or modifies a COVID restriction in the course of litigation, that does not necessarily moot the case,” so long as a petitioner remains “‘under a constant threat’ that government officials will use their power to reinstate the challenged restrictions” (quoting Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 75 (2020))). 3 privacy. He moved for an emergency temporary injunction, and after a hearing, the trial court denied the request. Green appeals that order denying the injunction. We reverse because the trial court did not apply the strict scrutiny that the supreme court specifically requires for this type of constitutional challenge. We remand so the trial court can apply the correct analysis, if there is any extant mask mandate for Green to challenge. I. In the typical case, to obtain a temporary injunction, a plaintiff would have to establish the following: (1) that irreparable harm is likely; (2) that an adequate remedy at law is unavailable; (3) that success on the merits is substantially likely; and (4) that the injunction would serve the public interest. Naegele Outdoor Advert. Co. v. City of Jacksonville, 659 So. 2d 1046, 1047 (Fla. 1995). The only matter for our review regarding an order on a temporary injunction would be whether the trial court abused its discretion when it considered these four elements and ruled on the request. See Alachua County v. Lewis Oil Co., 516 So. 2d 1033, 1035 (Fla. 1st DCA 1987) (“Wide judicial discretion rests in the circuit court in granting or dissolving temporary injunctions, and an appellate court will not interfere where no abuse of discretion appears.”). Also, we ordinarily would not consider de novo the required elements of a temporary injunction. Generally, we would neither consider anew the merits of a constitutional claim nor offer preliminary commentary on the possible legal viability of those claims. See Smith v. Hous. Auth. of City of Daytona Beach, 3 So. 2d 880, 881 (Fla. 1941) (“The obvious purpose of a temporary injunction is the maintenance of the subject matter in status quo pending the determination of the cause and, as the name implies, such an order is not conclusive and the provisions of it may be merged in, or dissolved by, the final decree.”). However, the supreme court has said that the analysis is entirely different when a temporary injunction motion is based on a privacy challenge. See Gainesville Woman Care, LLC v. State, 210 So. 3d 1243, 1256 (Fla. 2017). In Gainesville Woman Care, the court took us to task for not strictly adhering to its prior directives for handling such appeals. The supreme court in that case expressed again and again the sentiment that this court 4 “misapplied and misconstrued [supreme court] precedent by placing the initial evidentiary burden on [the plaintiffs] to prove a ‘significant restriction’ on Florida’s constitutional right of privacy before subjecting [the challenged law] to strict scrutiny.” Id. at 1245 (quoting in part State v. Gainesville Woman Care, LLC, 187 So. 3d 279, 282 (Fla. 1st DCA 2016)); id. at 1258 (concluding that this court “erred in admonishing the trial court for its failure to” make fact findings as to the “existence of a significant restriction on a woman’s right to seek an abortion”); see also id. at 1246, 1255, 1259, 1260, 1261, 1262, 1263, 1264. We will not make that mistake again. Rather, as we are told we must do, we will follow (and expect trial courts to do the same) what the supreme court made quite clear, repeatedly, in that case: The right of privacy is a “fundamental” one, expressly protected by the Florida Constitution, and any law that implicates it “is presumptively unconstitutional,” such that it must be subject to strict scrutiny and justified as the least restrictive means to serve a compelling governmental interest. Id. at 1246 (emphasis supplied); see also id. at 1253, 1254, 1256, 1260, 1265; Winfield v. Div. of Pari-Mutuel Wagering, 477 So. 2d 544, 547 (Fla. 1985) (identifying the “compelling state interest standard” as the “explicit standard to be applied” to a privacy claim, “in order to give proper force and effect to the amendment”). The supreme court in Gainesville Woman Care told us multiple times what this special approach means for the evidentiary burden at a temporary injunction hearing: A plaintiff does not bear a threshold evidentiary burden to establish that a law intrudes on his privacy right, and have it subjected to strict scrutiny, “if it is evident on the face of the law that it implicates this right.” 210 So. 3d at 1255 (emphasis supplied); see also id. at 1245–46, 1256, 1258–59. We read the supreme court’s jurisprudence on the right to privacy to require that we make a single, threshold, de novo inquiry when considering a temporary injunction appeal—Does the challenged law implicate an individual’s right of privacy? Cf. Winfield, 477 So. 2d at 547 (explaining that before strict scrutiny applies, there must be a “threshold” determination of whether “a reasonable expectation of privacy” exists). This question appears to be a legal one. Cf. Gainesville Woman Care, 210 So. 3d at 1256; 5 In re T.W., 551 So. 2d 1186, 1192 (Fla. 1989) (determining as a legal matter that “Florida’s privacy provision is clearly implicated in a woman’s decision of whether or not to continue her pregnancy”); Winfield, 477 So. 2d at 548 (explaining that “it is within the discretion of [the supreme court] to decide the limitations and latitude afforded article I, section 23,” and declaring, as a matter of state law, that an individual has a “legitimate expectation of privacy in financial institution records”). And that conclusion determines what type of proceeding the trial court must conduct when it considers a temporary-injunction motion. If a challenged law implicates a privacy right, the burden shifts to the government “to prove that the law further[s] a compelling state interest in the least restrictive way.” Gainesville Woman Care, 210 So. 3d at 1260. When the government fails to offer evidence to demonstrate a compelling state interest, the trial court then is absolved of having to make any finding to that effect. See id. at 1260–61. In this context, the supreme court also tells us that the remaining prongs of the inquiry collapse into the first prong. See id. at 1263–64 (holding that given the likelihood of the law’s unconstitutional impingement on privacy, there could be no adequate remedy at law for its enforcement; the law’s mere “enactment would lead to irreparable harm”; and enjoining the enforcement of a law encroaching a fundamental constitutional right would serve the public interest). II. A. When we look at the proceeding before the trial court through the lens of Gainesville Woman Care, then, we must initially consider whether the trial court reached the right conclusion about whether the mask mandate implicated a privacy right. The trial court did not subject the mask mandate to strict-scrutiny analysis, because the court concluded at the threshold that there was no cognizable constitutional right in play. As the trial court put it in its order, “[t]here is no recognized constitutional right not to wear a facial covering in public locations or to expose other citizens of 6 the county to a contagious and potentially lethal virus during a declared pandemic emergency.” The trial court, though, did not assess Florida law to consider Green’s asserted right of privacy. Indeed, it never discussed or even referenced the Florida Constitution’s express guarantee of privacy. It instead relied heavily on a case from a federal appellate court that considered a challenge to Florida’s motorcycle helmet law under the United States Constitution. Cf. Picou v. Gillum, 874 F.2d 1519, 1521–22 (11th Cir. 1989). In Picou the Eleventh Circuit stated that “there is no broad legal or constitutional ‘right to be let alone’ by government,” which the trial court quoted in its order. Id. at 1521. The trial court later backtracked by seemingly acknowledging there is a right to be let alone, but it still concluded that the right “is no more precious than the corresponding right of his fellow citizens not to become infected by that person and potentially hospitalized.” We cannot reconcile this analysis of the trial court with the express privacy guarantee found in the Florida Constitution, as it has been characterized and interpreted by our supreme court. The trial court simply looked at the right asserted by Green too narrowly, relying on the wrong privacy jurisprudence. The right to be let alone by government does exist in Florida, as part of a right of privacy that our supreme court has declared to be fundamental. See, e.g., Winfield, 477 So. 2d at 547. As we are about to explain, the supreme court has construed this fundamental right to be so broad as to include the complete freedom of a person to control his own body. Under this construction, a person reasonably can expect not to be forced by the government to put something on his own face against his will. Florida’s constitutional right to privacy, then, necessarily is implicated by the nature of the county’s mask mandate. This means the trial court had to apply the single-prong, strict-scrutiny mode of analysis set out in Gainesville Woman Care. Because of its erroneous treatment of Green’s asserted right, the trial court did not do so. That is the error we correct by reversing the order currently on review. 7  B. A person’s “right to be let alone by other people” is “left largely to the law of the individual States” and is not contained in the Fourth Amendment of the U.S. Constitution. Katz v. United States, 389 U.S. 347, 350 (1967); see also State v. Sarmiento, 397 So. 2d 643, 645 (Fla. 1981) (“[T]he citizens of Florida, through their state constitution, may provide themselves with more protection from governmental intrusion than that afforded by the United States Constitution.”). Florida’s citizens later secured for themselves a broader state right of privacy, including an explicit right to be let alone, by adding section 23 to the Florida Constitution’s Declaration of Rights, which states in pertinent part as follows: “Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein.” Art. I, § 23, Fla. Const. (emphasis supplied); see Winfield, 477 So. 2d at 548 (characterizing amendment as “an independent, freestanding constitutional provision which declares the fundamental right to privacy,” and as one “intentionally phrased in strong terms”); cf. id. (“The drafters of the amendment rejected the use of the words ‘unreasonable’ or ‘unwarranted’ before the phrase ‘governmental intrusion’ in order to make the privacy right as strong as possible.”). The framers of this text included the phrase “the right to be let alone” for its historical and legal significance. See id. at 546 (“The concept of privacy or right to be let alone is deeply rooted in our heritage and is founded upon historical notions and federal constitutional expressions of ordered liberty.”); see also Gerald B. Cope, Jr., To Be Let Alone: Florida’s Proposed Right of Privacy, 6 FLA. ST. U. L. REV. 671, 732–733 & n. 343 (1978) (providing history of the text’s development). The phrase dates back to the nineteenth century and Thomas Cooley’s discussion of the logic behind a cause of action for assault. THOMAS COOLEY, A TREATISE ON THE LAW OF TORTS 29 (Callaghan & Co. 1879) (“The right to one’s person may be said to be a right of complete immunity: to be let alone.”). Justice Brandeis used the term in a dissent that addressed how he believed the Fourth Amendment protects against government intrusion upon an individual’s right to privacy. See Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting) (explaining how the Framers “sought to protect Americans in their 8 beliefs, their thoughts, their emotions and their sensations” by conferring “as against the government, the right to be let alone— the most comprehensive of rights and the right most valued by civilized men”), quoted in Winfield, 477 So. 2d at 546. The phrase referred originally to a right to privacy that had been developing in the common law. Around the time of Cooley’s treatise, the U.S. Supreme Court observed the following: No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891) (emphasis supplied). The Supreme Court later construed the U.S. Constitution to include a right to “bodily integrity.” Cruzan ex rel. Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 269 (1990); cf. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 926 (1992) (Blackmun, J., concurring) (“The Court today reaffirms the long recognized rights of privacy and bodily integrity.”). That is the Supreme Court’s gloss on the non-textual right that it has deemed to flow implicitly out of the U.S. Constitution. See Gainesville Woman Care, 210 So. 3d at 1253. Our supreme court reads Florida’s explicit right to privacy even more broadly. Winfield, 477 So. 2d at 548. It has said, “[T]he amendment embraces more privacy interests, and extends more protection to the individual in those interests, than does the federal Constitution.” In re T.W., 551 So. 2d at 1192. Although the constitutional text is silent on the point, the supreme court has explained repeatedly that within the right to be let alone is “a fundamental right to the sole control of his or her person.” In re Guardianship of Browning, 568 So. 2d 4, 10 (Fla. 1990) (emphasis supplied) (quoting Schloendorff v. Soc’y of New York Hosp., 105 N.E. 92, 93 (N.Y. 1914) (“Every human being of adult years and sound mind has a right to determine what shall be done with his own body . . . .”)); Burton v. State, 49 So. 3d 263, 265 (Fla. 1st DCA 2010). This right ostensibly covers “an individual’s 9 control over or the autonomy of the intimacies of personal identity” and a “physical and psychological zone within which an individual has the right to be free from intrusion or coercion, whether by government or by society at large.” Browning, 568 So. 2d at 10 (quotations and citations omitted). The supreme court has applied the principle to state that a person cannot be forced to receive unwanted medical treatment, Id. 568 at 11–12; or be forced to devote her body to the carrying of a child to term, see In re T.W., 551 So. 2d at 1196; cf. Shevin v. Byron, Harless, Schaffer, Reid & Assocs., Inc., 379 So. 2d 633, 636 (Fla. 1980) (characterizing the right of privacy as also protecting one’s right to “decisional autonomy” in “various types of important personal” matters). As defined by the supreme court, article I, section 23’s guarantee of bodily and personal inviolability—which we are asked to follow—must include the inviolability of something so intimate as one’s own face. A person then reasonably can expect to be free from governmental coercion regarding what he puts on it. Cf. State v. Presidential Women’s Ctr., 937 So. 2d 114, 116 (Fla. 2006) (“Under a free government, at least, the free citizen’s first and greatest right, which underlies all others [is] the right to the inviolability of his person; in other words, the right to himself . . . .” (quoting Chambers v. Nottebaum, 96 So. 2d 716, 719 (Fla. 3d DCA 1957))); id. at 117; Gainesville Woman Care, 210 So. 3d at 1262 (reiterating well-understood “concepts of bodily autonomy and integrity” (quotation and citation omitted)). III. We return to the government order that is at issue in this appeal. Alachua County’s commission chairman had been issuing and reissuing emergency mask mandates for a year—since May 2020, in fact. The edicts commanded every person within the county’s jurisdiction to wear a face-covering that met governmental specifications. They ordered the following, under penalty of fine (and enforced by county-induced informants): Persons working in or visiting grocery stores, restaurants, bars, dance halls, nightclubs, in-store retail establishments, pharmacies, public transit vehicles, vehicles for hire, along with locations inside or outside, 10  where social distancing measures are not possible shall appropriately wear facial coverings as defined by the CDC, in a manner which covers the mouth and orifices of the nose. Alachua Cnty. Emergency Order 2020-50, ¶ 3 (Oct. 9, 2020). 3 This mask must have “snugly” covered a person’s nose and mouth, and it must have been “secured with ties or ear loops.” Id.; see also Alachua Cnty. Emergency Order 2020-21, ¶ 8 (May 2, 2020). We note that the county chairman’s dictate did not just force a person to wear a mask in public. The mask mandate potentially reached into the privacy of one’s home. 4 Moreover, the signage proposed by the county to help with enforcement, wherein residents were encouraged to report anyone they saw violating the mask mandate to the government, added to the sense of invasiveness flowing from this effort by the county. Based on what the supreme court has told us about the scope of article I, section 23, Green (and anyone else in Alachua County) reasonably could expect autonomy over his body, including his face, which means that he was correct to claim an entitlement to be let alone and free from intrusion by Alachua County’s commission chairman. The mask mandate, then, implicated the right of privacy. According to Gainesville Woman Care, the mask mandate was presumptively unconstitutional as a result. 5 Because the trial court reached the opposite legal conclusion, it did not subject the mask mandate to the strict scrutiny analysis that 3 Alachua County’s commission chairman later superseded this directive with another one, Emergency Order 2021-13, but that order contained the same mandate. 4 Despite this extraordinarily broad language, the trial court characterized the mandate as one applicable “in limited circumstances.” 5 But see Machovec v. Palm Beach County, 310 So. 3d 941 (Fla. 4th DCA 2021) (reaching a different legal conclusion). We certify conflict with the Fourth District on this issue. 11 Gainesville Woman Care requires for consideration of a temporary injunction motion when privacy is implicated. It also reached the other prongs that would apply to a typical temporary-injunction motion but not to one based on a privacy claim—consideration of an adequate legal remedy, irreparable harm, and the public and private interests at stake. The trial court’s incorrect legal conclusion about the right implicated by the mask mandate in turn spoiled the remainder of the temporary injunction proceeding. For this reason, we reverse the trial court’s denial of the temporary injunction. We remand for a new proceeding that presumes the unconstitutionality of the mask mandate, in the event there still is some mask mandate that remains to be litigated. 6 In any additional injunction hearing regarding a mask mandate in this case, the single question that the trial court must answer is the likelihood that the mask mandate would survive strict scrutiny. If the trial court were to conclude from the county’s evidence that there is a substantial likelihood the mask mandate would not survive that scrutiny, then it would have to enjoin the mask mandate. See Gainesville Woman Care, 210 So. 3d at 1263– 64 (holding that given the likelihood of the law’s unconstitutional impingement on privacy, there could be no adequate remedy at law for its enforcement, and the law’s mere “enactment would lead to irreparable harm,” and enjoining the enforcement of a law that encroaches on a fundamental constitutional right presumptively “would serve the public interest”). If the trial court does engage in this strict scrutiny inquiry, when the trial court analyzes whether the mask mandate is the least restrictive means to achieve a compelling governmental interest, a relevant consideration should be the statutory scheme established by the Legislature for the management of a public health emergency involving an infectious disease. See § 381.00315, Fla. Stat. The Legislature gave the state surgeon general, as the 6 To be clear, we are not saying that the mask mandate in fact was unconstitutional. If, however, Green persists in his challenge to some new mask mandate that the county adopts, the trial court would have to start its analysis with this presumption of unconstitutionality. 12 State’s health officer, the authority to “protect the public health” by, among other steps, ordering “an individual to be examined, tested, vaccinated, treated, isolated, or quarantined for communicable diseases that have significant morbidity or mortality and present a severe danger to public health”; isolating or quarantining someone who refuses; and forcing an individual to be vaccinated or treated if “there is no practical method to isolate or quarantine the individual.” Id. at (1)(c)4.; see also id. at (4) (giving the Department of Health “the authority to declare, enforce, modify, and abolish the isolation and quarantine of persons, animals, and premises as the circumstances indicate for controlling communicable diseases”); id. at (5) (giving the Department of Health rulemaking authority “to specify the conditions and procedures for imposing and releasing an isolation or quarantine”). The trial court’s analysis should address how, if at all, the mandate fits within this state scheme for managing a declared public health emergency. Cf. § 252.46, Fla. Stat. (authorizing counties to make orders and rules “as are necessary for emergency management purposes,” but that “are not inconsistent with any order or rules adopted . . . by any state agency exercising a power delegated to it by the Governor or the division [of emergency management]”). It would behoove the trial court also to consider that while article I, section 23 “was not intended to provide an absolute guarantee against all governmental intrusion into the private life of an individual,” Fla. Bd. of Bar Exam’rs re Applicant, 443 So. 2d 71, 74 (Fla. 1983), “even in a pandemic, the Constitution cannot be put away and forgotten.” Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 68 (2020). And there is this warning from William Pitt the Younger, roughly paraphrasing a similar sentiment in John Milton’s Paradise Lost: “Necessity is the plea for every infringement of human freedom.” REVERSED and REMANDED for further proceedings. CONFLICT CERTIFIED. LONG, J., concurs with opinion, in which TANENBAUM, J., joins. LEWIS, J., dissents with opinion. 13  _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ LONG, J., concurring. I concur in Judge Tanenbaum’s opinion because I see no other way to faithfully apply Gainesville Woman Care, LLC v. State, 210 So. 3d 1243 (Fla. 2017). I write separately to address an important and difficult question implicated by this case: Whether the constitutional right to be let alone is justiciable and, if so, to what extent. This inquiry is, at its core, a function of the separation of powers. And I question whether our current article I, section 23 jurisprudence can sufficiently protect against the grave risk of judicial intrusion into the powers of other constitutional offices. Our constitution establishes and builds out the branches and functions of government. The separation of powers is found in this basic structural make-up. But it is further emphasized in its own article II provision: “The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.” Art. II, § 3, Fla. Const. Constitutional officers are bound to fill out completely, and to confine themselves within, their respective constitutionally limited roles. The constitution also contains a declaration of rights. They are the people’s rights. They are not protections from a particular branch. Instead, they apply to the whole of government. And every constitutional officer is bound to their terms. Every judge, legislator, and governor; as well as every local officer—county commissioner, sheriff, and clerk alike. 14  In this way, our political system depends on our elected representatives to evaluate and restrain their own behavior to the terms of the constitution. And the people hold them accountable. If you do not like what your county commissioners are doing, then you can elect new ones. This is the primary mechanism for the vindication of the people’s rights—the ballot box. But here, Green takes a different approach. He has asked the judiciary to intervene and affirmatively prevent the county’s action. This extraordinary remedy pressures the constitutional structure and must be handled with great care. To prevent violating the separation of powers, courts strive to act only when they possess objective criteria to avoid judicial intrusion into the powers of other constitutional offices. See Coleman v. Miller, 307 U.S. 433, 454−55 (1939) (when addressing justiciability in the context of the separation of powers, courts should consider whether they possess “satisfactory criteria for a judicial determination”). Green asks the courts to enjoin the action of Alachua County, arguing the county’s mask mandate violates article I, section 23. That provision reads simply: “Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein.” Art. I, § 23, Fla. Const. No doubt this language reflects a core principle of the republic. It is the free citizen’s explicit constitutional protection from government, and his first and greatest right: “the right to the inviolability of his person; in other words, the right to himself.” State v. Presidential Women’s Ctr., 937 So. 2d 114, 116 (Fla. 2006) (quoting Chambers v. Nottebaum, 96 So. 2d 716, 719 (Fla. 3d DCA 1957)). But the face of article I, section 23 contains no limiting principles. This may emphasize the importance of the provision, but it also affects its justiciability. The breadth of the language does not lend itself to objective judicial application because “[p]ractically any law interferes in some manner with someone’s right of privacy.” Stall v. State, 570 So. 2d 257, 261 (Fla. 1990) (quoting In re T.W., 551 So. 2d 1186, 1204 (Fla. 1989) (Grimes, J., concurring in part, dissenting in part)). And the great “difficulty 15 lies in deciding the proper balance between this right and the legitimate interest of the state.” Id. Acknowledging the importance and difficulty of this balance leads ultimately to the question of responsibility—Who does the balancing? But in answering this foundational question, the supreme court has pointed in two different directions. On the one hand the court has said, “it is within the discretion of this Court to decide the limitations and latitude afforded article I, section 23.” Winfield v. Div. of Pari–Mutuel Wagering, Dep’t of Bus. Regul., 477 So. 2d 544, 548 (Fla. 1985). On the other hand, it has recognized that “[a]s the representative of the people, the legislature is charged with the responsibility of deciding where to draw the line.” Stall, 570 So. 2d at 261. Apparently, the legislature draws the line, but the courts decide if it was drawn in the right place. How then are we to determine when the representatives of the people have crossed the line? As Judge Tanenbaum points out in his opinion, we can find some guardrails in the historical understanding of the right to be let alone. That is an important inquiry, but, because the history suggests sweeping generalized principles, the results are of limited utility. Armed with our historical knowledge, we are then told to ask if it is reasonable for the plaintiff to assert that the government should stay out of this aspect of his life. Winfield, 477 So 2d at 547 (holding that the evaluation of claims under article I, section 23 first requires the courts to determine whether the challenged government action implicates “a reasonable expectation of privacy”) (emphasis added). Ironically, this, our only analytical tool, employs language that was rejected by the drafters of the provision. Id. at 548 (“The drafters of the amendment rejected the use of the words ‘unreasonable’ or ‘unwarranted’ before the phrase ‘governmental intrusion’”). Presumably, courts inserted the term reasonable because the provision lacks meaningful parameters. But even the courts’ unilateral addition of this governing principle struggles to right the ship. The corollary of whether the plaintiff has a reasonable expectation of privacy is whether the government’s intrusion is reasonable. This kind of judicial review begins to resemble 16 untethered oversight of otherwise lawful government actions. Extraordinary power, of questionable constitutional footing, is exercised in deciding when a county commission, governor, or legislature is acting reasonably. This kind of reasonableness inquiry differs in important ways from other areas of the law. For example, our search and seizure jurisprudence uses similar language, but it relies on a constitutional provision that expressly defines itself in terms of reasonableness. Art. I, § 12, Fla. Const. (protecting the people “against unreasonable searches and seizures”) (emphasis added). And our search and seizure reasonableness inquiry is used within the branch, to review past conduct, and determine whether a particular piece of evidence will be permitted in a judicial proceeding. This markedly differs from the article I, section 23 inquiry that has been used to reach out of the courthouse, into another branch of government, and affirmatively proscribe another’s future behavior. All of this without a clear directive or objective constitutional provision. It is difficult to square this approach with article II, section 3’s fundamental and explicit commitment to the separation of powers. Proponents respond that even if it is untethered oversight, it is what article I, section 23 requires. For decades courts have busied themselves by mining state and federal constitutions for hidden rights that their insufficiently industrious predecessors were unable to find. And then, after making their discoveries, have acted against the other branches demanding compliance. And this approach to article I, section 23 treats its language as an explicit adoption of what had been an extra-constitutional judicial practice—the constitutionalization of judicial oversight of government. But I question whether the language the people adopted in section 23 casts aside such fundamental tenets of our form of government. Instead, a plaintiff pursuing a constitutional challenge to a government action under article I, section 23 should bear a burden to present a manageable standard. See, e.g., Citizens for Strong Schs., Inc. v. Fla. State Bd. of Educ., 262 So. 3d 127, 135 (Fla. 2019) (requiring petitioners’ to “present the courts with [a] roadmap by which to avoid intruding into the powers of the other branches of 17 government”); Rucho v. Common Cause, 139 S. Ct. 2484, 2502 (2019) (holding that plaintiffs in constitutional challenge failed to provide a judicially discernable standard that is limited and precise enough to avoid political questions). Anything less “‘would necessarily’ require the courts ‘to subjectively evaluate the Legislature’s value judgements.’” Citizens for Strong Schs., 262 So. 3d at 137 (quoting Coal. for Adequacy & Fairness in Sch. Funding, Inc. v. Chiles, 680 So. 2d 400, 406−07 (Fla. 1996)). Not only would this approach lead to a different result in this case, it would also recognize and respect the courts’ limited role in our constitutional republic. Ours is a system that puts the power to make the law in the hands of the people’s elected representatives. See, e.g., Stall, 570 So. 2d at 261 (Fla. 1990) (recognizing that it is the legislature’s responsibility, as the representatives of the people, to decide the scope of article I, section 23). And rather than handing over their political disputes to judges, it would require litigants to develop strategies that honor our constitutional structure. Our constitution, quite intentionally, channels political disputes to the elected branches. The power to make policy is vested in the legislative branch, which is directly accountable to the people. The judicial branch is charged with applying the law for the purpose of deciding disputes. These distinct constitutional tasks require different things. The judiciary demands legal competence and impartiality. Those traits do not require the same level of direct accountability necessary for a policymaking branch. This constitutional structure works only if the courts do not stray beyond those judicial acts that require only legal competence and impartiality. Our current article I, section 23 jurisprudence rests uncomfortably on the personal dispositions of judges. Rather than looking to legal competence and impartiality, the analysis inevitably veers into judges’ notions of appropriate government intrusion. This case is a reflection of that problem. Both the majority and dissenting opinions spend much of their time struggling with whether this particular government intrusion is reasonable. That struggle speaks to the failings of our current jurisprudence and what it requires of judges. 18  The late Justice Scalia once noted that “[w]e have become addicted to abstract moralizing.” Antonin Scalia, Scalia Speaks: Reflections on Law, Faith, and Life Well Lived 262–63 (Christopher J. Scalia & Edward Whelan eds., 2017). It can be relatively harmless in the political spheres, but “abstract moralizing is a dangerous practice when it is . . . judicially enforced.” Id. It presents great dangers because an “inspiring sentiment” in a governing document like “[e]veryone has a right to respect for his private . . . life” provides nothing from which judges can objectively determine what “respect for private life consists of.” Id. It is this