Pinellas County, Florida v. Gary Joiner, etc.

Supreme Court of Florida
____________

No. SC2019-1819
____________

PINELLAS COUNTY, FLORIDA,
Petitioner,

vs.

GARY JOINER, etc., et al.,
Respondents.

June 27, 2024

GROSSHANS, J.

In this case, we consider whether sovereign immunity shields

a county from the obligation of paying ad valorem taxes for property

owned by that county but located outside its territorial boundaries. 1

We hold that it does not and approve the decision below, which

reached the same conclusion. Joiner v. Pinellas Cnty., 279 So. 3d

860, 862, 866 (Fla. 2d DCA 2019).

1. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
I

Pinellas County owns approximately 12,400 acres of real

property in neighboring Pasco County. Although Pinellas County

once paid ad valorem taxes to Pasco County for the property, it now

claims that sovereign immunity relieves it of that obligation.

Seeking to enforce for its position, Pinellas County filed suit against

the Pasco County Property Appraiser. In its two-count complaint,

Pinellas County asked the circuit court for a judgment declaring the

property immune from ad valorem taxes and an injunction

prohibiting future assessment and collection of such taxes.

Following limited discovery, Pinellas County moved for

summary judgment, arguing that the property in Pasco County was

not taxable based on principles of sovereign immunity. The Pasco

County Property Appraiser filed its own motion for summary

judgment arguing, in part, that Pinellas County’s sovereign

immunity from taxation did not extend into Pasco County.

The court held a hearing on the competing motions and

ultimately entered summary judgment in favor of Pinellas County,

ruling:

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As a political subdivision of the state, Pinellas County is
entitled to sovereign immunity which includes immunity
from the ad valorem taxation of its properties. This
immunity applies regardless of whether those properties
are located within the boundaries of Pinellas County or in
another county, within the state of Florida. Sovereign
immunity can only be waived by the state of Florida. The
state has not waived sovereign immunity for the ad
valorem taxation of properties owned by counties outside
their county lines.

The Pasco County Property Appraiser appealed. Disagreeing

with the trial court’s ruling, the Second District Court of Appeal

reversed in a decision authored by Judge Atkinson. The district

court noted that each county has statutory and constitutional

authority to assess ad valorem taxes on “all property in the county.”

Joiner, 279 So. 3d at 864 (citing art. VII, § 9, Fla. Const.; § 125.016,

Fla. Stat. (2014)). The district court also rejected Pinellas County’s

primary contention that its immunity from taxation extends beyond

its own borders, noting that Pinellas County had not identified any

supporting authority. Id. at 864-66. The district court further

reasoned that although a county’s “ad valorem taxation power must

necessarily yield to the immunity of the State,” it does not follow

that “a county’s taxation authority must yield to the immunity of

another county, whose boundaries, of course, are neither

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overlapping nor coextensive with any other county.” Id. at 864.

After completing its analysis, the district court certified the

following question as being of great public importance:

IS PROPERTY OWNED BY A COUNTY LOCATED
OUTSIDE ITS JURISDICTIONAL BOUNDARIES IMMUNE
FROM AD VALOREM TAXATION BY THE COUNTY IN
WHICH THE PROPERTY IS LOCATED?

Id. at 866.

Judge Casanueva concurred with the majority, concluding

that “there is and can only be one sovereign in this case, and that

sovereign is Pasco County.” Id. at 868 (Casanueva, J., concurring).

Unpersuaded by the majority and concurring opinions, Judge

Black dissented. He reasoned:

[A] county’s immunity from ad valorem taxation
emanates from the State and not from the county itself[.]
[Thus,] the immunity must necessarily extend to the
boundaries of the State absent a clear and unequivocal
waiver of that immunity. I have found no express waiver
of a county’s immunity from taxation in the controlling
statutes as would be applicable to this case.

Id. at 871 (Black, J., dissenting).

After the Second District’s decision issued, Pinellas County

sought discretionary review here based on the certified question.

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II

Pinellas County argues that the district court erred in holding

that its property in Pasco County was taxable.2 According to

Pinellas County, Florida’s counties enjoy the same sovereign

immunity from taxation as the State—a privilege that extends to

county-owned land located anywhere in Florida. We disagree.

Though we have previously held that a county’s real property

is immune from that county’s own efforts to assess ad valorem

taxes, see Park-N-Shop, Inc. v. Sparkman, 99 So. 2d 571, 573-74

(Fla. 1957), Pinellas County has not identified any authority

recognizing an immunity from taxation of the county’s property

located beyond its territorial boundaries. Nor, despite discussing a

number of cases, does the dissent point to a decision holding that

counties enjoy extraterritorial immunity from taxes. Absent such

authority and consistent with how the parties have framed their

arguments to us, we look to common-law sovereign immunity

2. The issue here presents a pure question of law, which is
subject to de novo review. See Knight v. State, 286 So. 3d 147, 151
(Fla. 2019) (de novo review for assessing legal issue); Naso v. Hall,
338 So. 3d 283, 286 (Fla. 4th DCA 2022) (scope of sovereign
immunity presents legal issue).

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principles to determine if Florida counties, as political subdivisions

of the state, are immune from taxation outside their borders. 3 Art.

VIII, § 1(a), Fla. Const.; see also Amos v. Matthews, 126 So. 308,

321 (Fla. 1930) (“While the county is an agency of the state, it is

also under our Constitution, to some extent at least, an

autonomous, self-governing, political entity with respect to

exclusively local affairs, in the performance of which functions it is

distinguished from its creator, the state, and for its acts and

obligations when acting in purely local matters the state is not

responsible.”).

We look to these common-law principles because, although

counties do not have the same sovereignty as the State, they have

been granted significant governmental authority within their

respective spheres. Counties have the power to tax, § 125.01(1)(r),

Fla. Stat. (2014); § 125.016, Fla. Stat. (2014); art. VII, § 9(a), Fla.

Const., the power to make and enforce laws, § 125.01(1)(a)-(b), (d),

3. We address only the question of common-law sovereign
immunity and do not consider whether Pinellas County’s property
could be statutorily exempt from taxation as that was not a basis
for the trial court’s order, nor did the district court pass upon this
question.

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(g)-(i), (o), (t), (w), (bb), Fla. Stat.; § 125.15, Fla. Stat.; § 125.56, Fla.

Stat. (2014); § 125.86(2), Fla. Stat. (2014), the power to take private

property and appropriate it for a county purpose, § 127.01, Fla.

Stat. (2014), and all powers of local self-government not

inconsistent with state law in the case of charter counties,

§ 125.81(1), Fla. Stat. (2014); § 125.86(8), Fla. Stat. These powers,

just to name a few, are all indicia of sovereignty. And we have at

least implied as much in our cases saying that sovereign immunity

applies to counties in certain, but not all, contexts. See Cauley v.

City of Jacksonville, 403 So. 2d 379, 381-82 (Fla. 1981) (noting

English precedent supporting concept of “local government

sovereign immunity”). Accordingly, we disagree with the dissent’s

assertion that our ensuing discussion on sovereign immunity is

thus irrelevant. See dissenting op. at 23-24. 4

4. We do not purport to define the scope and limits of a
county’s sovereignty. It is enough to say that whatever the
sovereign status of counties is, Pinellas’s and Pasco’s status would
be equal. Thus, our reliance on case law involving co-equal
sovereigns is not misplaced as the dissent claims.

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III

The common-law doctrine of sovereign immunity traces to

thirteenth-century England. Barnett v. Dep’t of Fin. Servs., 303 So.

3d 508, 512 (Fla. 2020). Kings reigned at the apex of the feudal

system and, as a result of the king’s position of preeminence, no

one could subject him to suit or appeal his rulings. The same

principle applied to lords: “[N]o lord could be sued by a vassal in his

own court, but each petty lord was subject to suit in the courts of a

higher lord.” Nevada v. Hall, 440 U.S. 410, 414-15 (1979),

overruled on other grounds by Franchise Tax Bd. of Cal. v. Hyatt,

587 U.S. 230 (2019).

Having developed these roots, the doctrine of sovereign

immunity eventually made its way into American law. Initially, its

recognition in the colonies was limited. See John J. Gibbons, The

Eleventh Amendment and State Sovereign Immunity: A

Reinterpretation, 83 Colum. L. Rev. 1889, 1896 (1983) (relying on

colonial-government constitutions to “dispel the notion that

governmental immunity was an accepted doctrine in eighteenth-

century colonial America”); 1 Joseph Story, Commentaries on the

Constitution of the United States § 207, at 149 (5th ed. 1891)

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(“[A]ntecedent to the Declaration of Independence[,] none of the

colonies were, or pretended to be, sovereign states.”).

Nevertheless, following the American Revolution, the doctrine

gained widespread acceptance in this country—both at the federal

and state levels of government. Cohens v. Virginia, 19 U.S. 264,

411-12 (1821) (recognizing federal government’s sovereign

immunity); Principality of Monaco v. Mississippi, 292 U.S. 313, 329-

30 (1934) (recognizing state sovereign immunity); Cauley, 403 So.

2d at 381 (“The majority of American states fully embraced the

sovereign immunity theory . . . .” (citing Restatement (Second) of

Torts § 895B, comment a at 400 (1979))).

The doctrine of sovereign immunity became part of Florida law

in 1829 when “[t]he common law of England in effect on July 4,

1776, was adopted” in Florida. Barnett, 303 So. 3d at 512

(alteration in original) (quoting State v. Egan, 287 So. 2d 1, 3 (Fla.

1973)); see also Am. Home Assur. Co. v. Nat’l R.R. Passenger Corp.,

908 So. 2d 459, 471 (Fla. 2005) (noting that section 2.01 of the

Florida Statutes incorporated common law of sovereign immunity).

“Under the common law, the [State of Florida’s] immunity was

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total,” subject only to waiver by the Florida Legislature. Am. Home

Assur., 908 So. 2d at 477 (Cantero, J., concurring).

In time, courts recognized that Florida counties, like the State,

enjoy sovereign immunity. This has been so for at least a hundred

years. See Keggin v. Hillsborough Cnty., 71 So. 372, 373 (Fla. 1916)

(acknowledging county immunity; noting that under English

common law, “a county . . . could not be subject to a civil action for

a breach of its public duty”).

Apart from showing the origins and development of sovereign

immunity, history and the common law demonstrate that territorial

boundaries matter for purposes of determining the scope of this

doctrine. In one early case involving a dispute over a French

warship, Chief Justice Marshall wrote that a sovereign, “by

acquiring private property in a foreign country,” “assum[es] the

character of a private individual” as to that property. The Schooner

Exch. v. McFaddon, 11 U.S. (7 Cranch) 116, 145 (1812); cf. Upper

Skagit Indian Tribe v. Lundgren, 584 U.S. 554, 563 (2018) (Roberts,

C.J., concurring) (characterizing this rule as “settled principle of

international law”). Chief Justice Marshall added, “[T]he property of

a foreign sovereign is not distinguishable by any legal exemption

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from the property of an ordinary individual.” Schooner Exch., 11

U.S. at 144-45.

More than a century later, the Supreme Court relied on those

principles in Georgia v. City of Chattanooga, 264 U.S. 472 (1924).

There, Georgia purchased land in Chattanooga, Tennessee, to be

used as a railway yard. Id. at 478. Years after the purchase,

Chattanooga sought to condemn the Georgia-owned land, which

prompted Georgia to seek relief in the Supreme Court. Id.

Declining to grant the requested relief, the Supreme Court held:

Land acquired by one state in another state is held subject
to the laws of the latter and to all the incidents of private
ownership. The proprietary right of the owning state
does not restrict or modify the power of eminent domain
of the state wherein the land is situated. Tennessee, by
giving Georgia permission to construct a line of railroad
from the state boundary to Chattanooga, did not
surrender any of its territory, or give up any of its
governmental power over the right of way and other lands
to be acquired by Georgia for railroad purposes. The
sovereignty of Georgia was not extended into Tennessee.
Its enterprise in Tennessee is a private undertaking. It
occupies the same position there as does a private
corporation authorized to own and operate a railroad,
and, as to that property, it cannot claim sovereign
privilege or immunity.

Id. at 480-81 (emphasis added) (citations omitted); accord The

Santissima Trinidad, 20 U.S. (7 Wheat.) 283, 352-53 (1822)

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(recognizing that a sovereign’s power is “bounded by” its “territorial

limits” (emphasis added)); The Apollon, 22 U.S. (9 Wheat.) 362, 370

(1824) (stating as a general rule that “[t]he laws of no nation can

justly extend beyond its own territories” (emphasis added));

Asociacion de Reclamantes v. United Mexican States, 735 F.2d 1517,

1521 (D.C. Cir. 1984) (“A territorial sovereign has a primeval

interest in resolving all disputes over use or right to use of real

property within its own domain.” (emphasis added)); Upper Skagit,

584 U.S. at 568 (Thomas, J., dissenting) (“An assertion of immunity

by a foreign sovereign over real property is an attack on the

sovereignty of ‘the State of the situs.’ ” (emphasis added) (citing

Competence of Courts in Regard to Foreign States, 26 Am. J. Int’l L.

Supp. 451, 578 (1932))). 5

From this discussion of history and the common law, we make

two observations. First—despite the expansive history of sovereign

immunity in Florida, America, and England—Pinellas County does

not identify any historical practice here or abroad that supports its

assertion of immunity from taxation for county-owned property

5. We note that Pinellas County does not claim that it could,
for instance, disregard Pasco County’s land-use law.

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located outside its borders. Second, Pinellas County’s position is

inconsistent with the common-law principles discussed above on

the scope of sovereign immunity and the significance of territorial

boundaries. We now turn to Pinellas County’s primary arguments

challenging the decision below.

IV

We start with Pinellas County’s contention that the Second

District’s decision cannot be reconciled with well-established

Florida case law on a county’s immunity from ad valorem taxation.

To be sure, there is case law broadly stating that a county enjoys

immunity from ad valorem taxation. See, e.g., Canaveral Port Auth.

v. Dep’t of Revenue, 690 So. 2d 1226, 1228 (Fla. 1996); Dickinson v.

City of Tallahassee, 325 So. 2d 1, 3 (Fla. 1975). Though we

acknowledge that this general principle may control in other cases,

we do not mechanically apply it here. Unlike the cases on which

Pinellas County relies, this case involves county-owned property

located outside that county’s territorial boundaries. Because of this

significant factual distinction, Pinellas County’s case law does not

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support, much less mandate, disapproval of the Second District’s

decision.6

In making a related argument, Pinellas County claims that it

derives immunity from the State, and thus, its immunity must be

coextensive with the State’s. And because the State would be

immune from taxation if it owned land in Pasco County, Pinellas

County should be too. We reject this argument as well.

Pinellas County is correct that each county partakes of the

State’s sovereign immunity from ad valorem taxation. See art. VIII,

§ 1(a), Fla. Const. (“The state shall be divided by law into political

subdivisions called counties.” (emphasis added)); § 196.199(1)(c),

Fla. Stat. (2014) (creating tax exemptions for political subdivisions

of the state, including counties); § 7.01-.67, Fla. Stat. (2014)

(establishing boundaries for each of Florida’s 67 counties);

6. The rule statements which Pinellas County relies on often
do not mention geographic boundaries at all. See, e.g., Dickinson,
325 So. 2d at 3 (“The state and its political subdivisions, like a
county, are immune from taxation since there is no power to tax
them.” (quoting Orlando Utils. Comm’n v. Milligan, 229 So. 2d 262,
264 (Fla. 4th DCA 1969))). Taken literally, such statements would
encompass land located outside of Florida. However, even Pinellas
County does not advocate such a broad view of its own tax
immunity.

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see also Canaveral Port Auth., 690 So. 2d at 1228; Arnold v.

Shumpert, 217 So. 2d 116, 120 (Fla. 1968); City of Tampa v. Easton,

198 So. 753, 756 (Fla. 1940). But that does not mean each county

enjoys that immunity coextensively with the State. See Amos, 126

So. at 321 (recognizing principle that counties are not independent

sovereigns because they derive their powers from the sovereign

State).

Our constitution does not say, nor have we ever said, that a

county can assert the State’s sovereign immunity from taxation as

to property outside the county’s territorial limits. These limits,

drawn by the Legislature, tell us where one county ceases its

enjoyment of the State’s immunity from ad valorem taxation and

another’s begins.

To be clear, we do not infer a waiver from the Legislature’s

setting the geographic boundaries of each county, for “waiver will

not be found as a product of inference or implication.” Am. Home

Assur., 908 So. 2d at 472. Instead, we simply find that in setting

each county’s territorial boundaries, the Legislature established, in

the first instance, the extent to which each county may assert the

State’s sovereign immunity from taxation. This reconciles each

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county’s power to levy an ad valorem tax “upon all property in the

county,” see § 125.016, Fla. Stat., with its statutory exemption from

taxation, see § 196.199(1)(c), Fla. Stat. 7

Pinellas County also advances an argument likening the

immunity asserted here with immunity applicable in cases where a

county officer commits tortious conduct outside his or her county’s

border while carrying out official duties. But in this case, Pinellas

County is not claiming immunity for the extraterritorial conduct of

its officials. Rather, it claims immunity based on its ownership of

extraterritorial land. As noted above, ownership of extraterritorial

land is not an attribute of sovereignty; instead, the foreign sovereign

owns such land subject to the laws of the sovereign where the

property is located. City of Chattanooga, 264 U.S. at 480-81; Upper

Skagit, 584 U.S. at 567-68 (Thomas, J., dissenting). Accordingly,

even if Pinellas County accurately characterizes the tort-based case

7. Elsewhere in its reply brief, Pinellas County emphasizes
statutes governing taxation and statutes authorizing counties to
condemn land outside their geographic boundaries. Quite simply,
its reliance on those statutes is misplaced because they do not in
any way govern the scope of sovereign immunity which is at issue
in this case.

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law it cites, that case law does not support Pinellas County’s

position. 8, 9

V

The dissent raises arguments unlike those advanced by

Pinellas County. 10 In the dissent’s view, we have looked to the

8. Since our opinion is limited to taxation, we express no view
on case law involving sovereign immunity in other contexts.

9. Pinellas County also argues that public policy favors a
recognition of tax immunity. We have, in the past, considered
policy objectives in determining whether to extend our
jurisprudence on sovereign immunity to fit the facts of a given case.
Without reexamining that approach, we find that the policy
considerations advanced in Pinellas County’s briefs would not
meaningfully further any particular policy interests at the local or
state level. Thus, these specific considerations, as briefed, have no
bearing on the outcome of this case.

10. The dissent proposes an interpretation of immunity not
previously argued by the parties or considered by the courts below.
Though we disagree with the dissent on the merits, we also cannot
endorse its departure from fundamental party-presentation
principles. See United States v. Sineneng-Smith, 590 U.S. 371, 375-
76 (2020) (“[O]ur system ‘is designed around the premise that
[parties represented by competent counsel] know what is best for
them, and are responsible for advancing the facts and argument
entitling them to relief.” (second alteration in original) (quoting
Castro v. United States, 540 U.S. 375, 386 (2003) (Scalia, J.,
concurring in part and concurring in the judgment))); D.H. v. Adept
Cmty. Servs., Inc., 271 So. 3d 870, 888 (Fla. 2018) (Canady, C.J.,
dissenting) (“This requirement of specific argument and briefing is
one of the most important concepts of the appellate process.
Indeed, it is not the role of the appellate court to act as standby

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correct source—the common law—but discerned an inapplicable

legal rule from it.

According to the dissent, there is a background common-law

principle that counties and municipalities (or municipal

corporations) are presumptively immune from taxation anywhere

within the state they are located, so long as the land is used for a

public purpose. Dissenting op. at 25-26, 28-31 (placing significant

reliance on two secondary sources). We, however, think that the

principle on which the dissent relies is incompatible with Florida

law in several respects.

First, this rule treats municipalities and counties as

essentially having the same status. But we know from our state’s

history and our precedent that counties and municipalities are not

interchangeable governmental units under Florida law. See, e.g.,

Am. Home Assur., 908 So. 2d at 477-78 (Cantero, J., concurring)

counsel for the parties.” (citing Polyglycoat Corp. v. Hirsch Distribs.,
Inc., 442 So. 2d 958, 960 (Fla. 4th DCA 1983))); Berben v. State,
268 So. 3d 235, 239 (Fla. 5th DCA 2019) (Grosshans, J.,
dissenting) (stressing that neutral role of appellate court is
compromised when court raises own argument and reverses based
on it).

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(relying on Court’s cases for proposition that counties enjoyed

greater immunity than municipalities).

Second, Florida law routinely characterizes tax immunity as

being a component of the larger concept of sovereign immunity.

See Cason v. Fla. Dep’t of Mgmt. Servs., 944 So. 2d 306, 309-10

(Fla. 2006) (State has “sovereign immunity” from taxation; stressing

sovereign status as basis for immunity from taxation; drawing

sharp distinction between immunity from taxation and the

exemption statutes); Sun ’N Lake of Sebring Improvement Dist. v.

McIntyre, 800 So. 2d 715, 720 (Fla. 2d DCA 2001) (“Immunity from

taxation is not derived from the state constitution; it arises from

common law concepts of sovereign immunity.” (citing Dickinson,

325 So. 2d 1)). And the dissent advances no argument that we

should recede from or disapprove of this case law.

Third, as acknowledged by the dissent, Florida case law on tax

immunity does not focus on use. See dissenting op. at 41 (“To date,

it has been assumed that the county-owned property immunity

rule, whatever its geographic scope, does not include a requirement

that the owning county use the property for public purposes.”). For

instance, in Dickinson, we found that both the State and Leon

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County had sovereign immunity from a utility tax imposed by the

City of Tallahassee, but we did not focus on how the purchased

utilities would be used. 325 So. 2d at 4.

Finally, the dissent’s position seems incompatible with the

principle that statutory exemptions must have a constitutional

basis. See Sebring Airport Auth. v. McIntyre, 783 So. 2d 238, 247

(Fla. 2001) (“The Legislature is without authority to grant an

exemption from taxes where the exemption has no constitutional

basis.” (quoting Archer v. Marshall, 355 So. 2d 781, 784 (Fla.

1978))). If the rule has always been that counties are presumptively

immune from taxation anywhere in Florida, then it is hard to

understand why we would be so demanding when it comes to the

exemption statute, which the dissent characterizes as essentially

declaring what the background law already was, see dissenting op.

at 28, 31-32.

In addition, the dissent finds support for its position by

comparing the prior version of the Florida Constitution with its

current text. Dissenting op. at 33-40. The dissent’s argument

focuses on the fact that the current constitution no longer has a

county exemption for municipal functions. Dissenting op. at 35-37.

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It notes three decisions issued in the decade prior to the

constitutional revision—those decisions broadly stating that

county-owned land is immune from taxation. Dissenting op. at 37.

In essence, the dissent asserts that the drafters and adopters felt

safe in removing the municipal-function exemption based on the

settled rule in our case law on county tax immunity. Dissenting op.

at 37.

We find this assertion by the dissent to be speculative. Other

than the mere timing of those three decisions in reference to the

constitutional change, the dissent offers no evidence of original

public meaning to support its rule. Put simply, we are not prepared

at this point to take the dissent’s “structural” leap of faith based on

this limited evidence and absent briefing on this point. 11

11. We make two final points. First, the dissent’s analysis
casts some doubt on the constitutionality of the county tax-
exemption statute by suggesting that the current constitution does
not fully support the statutory grounds for exemption. We cannot
accept the dissent’s position on this potential constitutional issue,
especially in light of the limited (almost nonexistent) briefing on this
issue. And second, though motivated by the well-meaning concern
of maximizing legislative discretion, the dissent would achieve this
goal by finding a constitutional basis for a rule set forth in two
secondary sources. We, however, cannot agree with the dissent
that constitutionalizing such a rule is within the scope of our
judicial power.

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VI

Since neither history, nor our precedent, support Pinellas

County’s position, we decline to hold that common-law principles of

sovereign immunity protect county-owned property from ad valorem

taxation when that property is located outside the county’s

jurisdictional boundaries. Accordingly, we answer the certified

question in the negative and approve the Second District’s decision.

It is so ordered.

LABARGA, COURIEL, and FRANCIS, JJ., concur.
MUÑIZ, C.J., dissents with an opinion, in which CANADY, J.,
concurs.
SASSO, J., did not participate.

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

MUÑIZ, C.J., dissenting.

Beginning in Park-n-Shop, Inc. v. Sparkman, 99 So. 2d 571,

573-74 (Fla. 1957), our Court over many decades has said that

county-owned property is immune from ad valorem taxation. Cason

v. Fla. Dep’t of Mgmt. Servs., 944 So. 2d 306, 309 (Fla. 2006); Fla.

Dep’t of Revenue v. City of Gainesville, 918 So. 2d 250, 255 (Fla.

2005); Canaveral Port Auth. v. Dep’t of Revenue, 690 So. 2d 1226,

1228 (Fla. 1996); Dickinson v. City of Tallahassee, 325 So. 2d 1, 3

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(Fla. 1975); Hillsborough Cnty. Aviation Auth. v. Walden, 210 So. 2d

193, 194-95 (Fla. 1968). The certified question is about the scope

of this immunity rule. Does it apply only to county-owned property

located within the owning county’s territorial boundaries, as the

Second District held in the decision under review? Or does the

immunity rule also apply to county-owned property located in a

different Florida county?

The majority believes that our precedents discussing the

immunity rule give insufficient guidance to answer the certified

question. So it answers the question by recourse to “common-law

sovereign immunity principles.” To find those principles, the

majority looks entirely to cases involving tax disputes between

separate sovereigns—nations, states, and Indian tribes—even

though the majority itself acknowledges that Florida counties are

not sovereigns. Analogizing to those cases, the majority concludes

that tax immunity is limited to property within a county’s own

boundaries.

In my view, the majority’s answer to the certified question is

wrong for two basic reasons. First, an exclusive focus on inapposite

cases has caused the majority to overlook the common law

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principles specific to the context of intrastate intergovernmental

taxation. Those principles, not the rules that govern disputes

between rival sovereigns, are the ones our Court relied on in

announcing the immunity rule at issue. Under the common law, all

county-owned property is presumptively immune, at least if it is

used for a public purpose. Second, and more importantly, the

majority does not account for the way the 1968 constitution

incorporated this Court’s then-existing immunity precedents. The

structure of our governing constitution dictates that all county

property is presumptively immune, subject to any legislative waiver

of that immunity.

I would answer the certified question by saying that all

county-owned property located in Florida is presumptively immune

from ad valorem taxation. But I would also remand for

consideration of (1) Respondent Pasco County’s alternative

argument that section 196.199(1)(c), Florida Statutes (2014), is best

read as a limited waiver of sovereign immunity and (2) if so, how the

statute applies to the property at issue in this dispute. The

resolution of Pasco County’s alternative argument could affect the

tax status of county-owned property within the county’s own

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boundaries; that issue deserves to be litigated in the proper course,

not decided in the first instance by this Court.

I.

To understand the nature and scope of the immunity rule, it is

necessary to know where it came from. Under the common law of

intrastate intergovernmental taxation, the immunity doctrine is not

the product of constitutional text or of statute. See 84 C.J.S.

Taxation § 215 (1954) (“[I]mmunity from taxation . . . exists apart

from any exempting statute or constitutional provision . . . .”);

Dickinson, 325 So. 2d at 3 n.6 (“[T]he principle of immunity is not

constitutionally dependent.”). Nor does immunity in this context

turn on inquiries into the “inherent power” of either the taxing or

the property-owning entity. See Collier Cnty. v. State, 733 So. 2d

1012, 1019 (Fla. 1999) (Florida counties have no inherent power to

tax, but derive their taxing authority from our state constitution

and laws).

Instead, in the field of intrastate intergovernmental taxation,

the common law immunity doctrine reflects assumptions about the

extent of authority conferred by constitutional and statutory

provisions that generally authorize taxation. The immunity doctrine

- 25 -
creates a background rule of interpretation holding that certain

exclusions from taxation are so fundamental and obvious that they

need not be embodied in an express exemption. Judge Cooley’s

authoritative treatise explains:

Before noticing the exemptions expressly made by
law, it will be convenient to speak of some which rest
upon implication. Some things are always presumptively
exempted from the operation of general tax laws, because
it is reasonable to suppose they were not within the
intent of the legislature in adopting them. Such is the
case with property belonging to the state and its
municipalities, and which is held by them for
governmental purposes.

1 Cooley on Taxation 263 (3d ed. 1903).

The immunity doctrine sets a baseline against which

constitutional drafters or legislators can operate.

Recognizing that the immunity doctrine is a background rule

of interpretation clarifies what it means to ask about the scope of

immunity for county-owned property. Here, no one doubts that

Florida law confers on counties a general power of ad valorem

taxation. The sources of that power are: article VII, section 4 of the

Florida Constitution, which requires the Legislature to pass laws

securing a “just valuation of all property for ad valorem taxation”;

article VII, section 9(a), which requires the Legislature to authorize

- 26 -
counties to levy ad valorem taxes; and section 125.016, Florida

Statutes (2014), which empowers counties to levy an ad valorem tax

“upon all property in the county.” But the common law immunity

rule requires us to ask: is there an implicit exception to these

general grants of taxing authority that shields from taxation

property owned by one county but located in the territory of

another? The governing common law principles tell us that the

answer is yes.

Our opinion in Orange State Oil Co. v. Amos, 130 So. 707 (Fla.

1930), gives the earliest and best evidence of this Court’s

understanding of the applicable common law immunity rule. In

that case, we noted the existence of an express statutory exemption

for “[a]ll public property of the several counties, cities, villages,

towns and school districts in this State, used or intended for public

purposes.” Id. at 709; see Comp. Gen. Laws 1927, § 897. A

contemporary reader would have understood that “[a]n express

exemption of property belonging to counties or municipal

corporations includes property located outside the county or

municipality.” 2 Cooley, The Law of Taxation 1351 (4th ed. 1924).

- 27 -
The Court in Orange State Oil essentially said that it was

unnecessary for the Legislature to have adopted this express

exemption. Citing Cooley, we said: “Inasmuch as taxation of public

property would necessarily involve other taxation for the payment of

taxes so laid, such property is usually excluded by implication from

the operation of laws imposing general taxes, unless there is a clear

intent to include it.” Orange State Oil, 130 So. at 709 (emphasis

added). And then we said that the express statutory exemption, “in

so far as it relates to cities and counties, is largely declaratory of the

general rule independent of statute.” Id. We further described the

statute as “largely declaratory” of “general principles of law.” Id. In

other words, the “general rule,” the “general principles,” held that

all county-owned property used or intended for public purposes is

presumptively excluded from generally worded tax laws.

Nearly three decades would pass before our Court, in the 1957

Park-n-Shop case, explicitly declared that county-owned property is

immune from taxation. Without citation to specific authority, we

said: “After a careful study of appropriate provisions of the

Constitution and the statutes we decide that property of the state

and of a county, which is a political subdivision of the state, . . . is

- 28 -
immune from taxation, and we say this despite the references to

such property [in Florida statute] as being exempt.” Park-N-Shop,

99 So. 2d at 573-74. The reference at the end of this statement is

to the same law we discussed in Orange State Oil.

The very next year, in State ex rel. Charlotte County v. Alford,

107 So. 2d 27 (Fla. 1958), our Court held that state-owned property

is also immune from taxation. We explained: “Although our

statutes specifically exempt such State owned lands, such

exemption is not dependent upon statutory or constitutional

provisions but rests upon broad grounds of fundamentals in

government.” Id. at 29 (footnote omitted). This time, we did cite

authority: Corpus Juris (1933) and Corpus Juris Secundum (1954).

See id. at 29 n.9 (citing those sources); see also 61 C.J. Taxation

§ 359 (1933) (“This immunity, although in some jurisdictions

declared by constitutional or statutory provisions expressly

exempting such property from taxation, is not dependent thereon,

but rests upon public policy and the fundamental principles of

government.”).

The sources that our Court relied on in Alford simply recite the

common law intrastate intergovernmental taxation rule articulated

- 29 -
by Cooley and by this Court in Orange State Oil: “[A]s a general rule,

and in the absence of express statutory authority, public property,

when devoted to public use, including not only the property of the

state itself, but also the public property of its political subdivisions,

such as counties and municipal corporations, is not subject to

taxation.” 61 C.J. Taxation § 343 (1933); see also 84 C.J.S.

Taxation § 197 (1954). These sources emphasize that common law

immunity applies based on public ownership and use of property

for public purposes. They do not hint that the immunity is limited

to the owning entity’s territorial jurisdiction (assuming the property

is intrastate, of course).

On the contrary, the most on-point authority indicates

otherwise:

Lands, buildings, and other property owned by municipal
corporations and appropriated to public uses are but the
means and instrumentalities used for governmental
purposes, and consequently they are excluded from the
operation of laws imposing taxes, whether they are within
or without the territory of the municipality which owns
them, although, under some statutes, property of a
municipal corporation located outside the municipality
may be subject to taxation. This immunity, not from
necessity, but from abundant caution, is, in some
jurisdictions, confirmed by constitutional or statutory
provisions expressly exempting such property from
taxation . . . .

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84 C.J.S. Taxation § 202 (1954) (emphasis added). While this

passage speaks about “municipal corporations” and a generic

“municipality,” I have been unable to locate any authority

suggesting that the common law rule was any different for counties.

Consider again the Florida tax exemption statute in effect in

1930 and 1957, when our Court decided Orange State Oil and Park-

n-Shop. Originally enacted in 1895, that law exempted from

taxation “[a]ll public property of the several counties, cities, villages,

towns and school districts in this State, used or intended for public

purposes.” Ch. 4322, § 4, Laws of Fla. (1895). Two features stand

out. First, the statute treats county- and city-owned property the

same. Second, it applies to “all” such property “used or intended

for public purposes.” This is what our Court in Orange State Oil

described as “largely declaratory of the general rule independent of

statute.” 130 So. at 709.

The majority does not consider the authorities that this Court

relied on in developing our jurisprudence on intrastate

intergovernmental tax immunity. Instead, the majority relies

entirely on cases arising in a different context—disputes between

- 31 -
rival sovereigns. Yet, as the majority itself acknowledges, Florida

counties are not independent sovereigns. Amos v. Matthews, 126

So. 308, 321 (Fla. 1930) (a Florida county is not “an independent

sovereignty”). Counties do not possess inherent powers of taxation.

They are governed by a single sovereign, the State, under a single,

unified body of law—a body of law that includes the accepted

interpretive conventions described above. To find the correct

answer to the certified question, it does not help to cite a case

involving a property rights dispute between the states of Georgia

and Tennessee, Georgia v. City of Chattanooga, 264 U.S. 472 (1924),

or several cases involving disputes in federal court over foreign

ships and their cargo, The Schooner Exchange v. McFaddon, 11 U.S.

(7 Cranch) 116 (1812); The Santissima Trinidad, 20 U.S. (7 Wheat.)

283 (1822); The Apollon, 22 U.S. (9 Wheat.) 362 (1824), or a case

about an Indian tribe’s sovereign immunity from a suit over

immovable property located outside tribal lands, Upper Skagit

Indian Tribe v. Lundgren, 584 U.S. 554 (2018). Each of these cases

is far afield from the specific common law context at issue here.

For the reasons I have explained, the common law rule

governing intrastate intergovernmental taxation tells us that there

- 32 -
are implicit exclusions to generally worded laws authorizing

taxation by counties. Such exclusions extend to property owned by

one county but located in another. Under the applicable common

law rule, all county-owned property is presumptively immune from

taxation, unless and until the Legislature expressly gives local

government entities the authority to tax such property.

II.

More important than any background rule of the common law,

the structure of our governing 1968 constitution dictates that all

county property is immune from taxation. This becomes especially

apparent when one compares the 1968 constitution to its

predecessor, Florida’s 1885 constitution.

It helps first to set out some foundational principles.

“[G]overnmentally owned property is generally excluded from

taxation, through either immunity or exemption.” Fla. Dep’t of

Revenue, 918 So. 2d at 255. Immunity is not dependent on any

express constitutional provision. Dickinson, 325 So. 2d at 3 n.6

(“[T]he principle of immunity is not constitutionally dependent.”).

Nor is immunity something that the Legislature can confer.

Canaveral Port Auth., 690 So. 2d at 1228 (“The Florida Constitution

- 33 -
does not empower the legislature to designate what entities are

immune from ad valorem taxation.”).

By contrast, tax exemptions are a creature of express

constitutional provisions or statutes. The Legislature, though,

cannot grant exemptions that are not authorized in the

constitution. See L. Maxcy, Inc. v. Fed. Land Bank of Columbia, 150

So. 248, 250 (Fla. 1933) (“The principle has been more than once

affirmed in this state that the Constitution must be construed as a

limitation upon the power of the Legislature to provide for the

exemption from taxation of any classes of property except those

particularly mentioned classes specified in the organic law itself.”);

Archer v. Marshall, 355 So. 2d 781, 784 (Fla. 1978) (“The

Legislature is without authority to grant an exemption from taxes

where the exemption has no constitutional basis.”); Sebring Airport

Auth. v. McIntyre, 783 So. 2d 238, 253 (Fla. 2001) (“It is not for this

Court or the Legislature to grant ad valorem taxation exemptions

not provided for in the present constitutional provisions.”).

Now compare the 1885 constitution and the 1968 constitution

that replaced it, neither of which expressly mentions tax immunity.

The relevant provisions of the 1885 constitution are article IX,

- 34 -
section 1, and article XVI, section 16. In Holbein v. Hall, 189 So. 2d

797, 798 (Fla. 1966), we said that “[a]ll statutes providing for tax

exemption of any kind, with the exception of homestead and certain

personal exemptions, must come within the ambit of these two

sections.” (Emphasis omitted.)

Article IX, section 1 said:

The Legislature shall provide for a uniform and equal rate
of taxation, and shall prescribe such regulations as shall
secure a just valuation of all property, both real and
personal, excepting such property as may be exempted
by law for municipal, educational, literary, scientific,
religious or charitable purposes.

(Emphasis added.)

Article XVI, section 16 said that “[t]he property of all

corporations . . . shall be subject to taxation unless such property

be held and used exclusively for religious, scientific, municipal,

educational, literary or charitable purposes.” (Emphasis added.)

The corresponding portion of the 1968 constitution is article

VII, section 3(a), which replaced the above-cited provisions from the

1885 constitution. Article VII, section 3(a) says:

All property owned by a municipality and used
exclusively by it for municipal or public purposes shall be
exempt from taxation. A municipality, owning property
outside the municipality, may be required by general law

- 35 -
to make payment to the taxing unit in which the property
is located. Such portions of property as are used
predominantly for educational, literary, scientific,
religious or charitable purposes may be exempted by
general law from taxation.

Viewed in contrast to the predecessor provisions from the

1885 constitution, three features of article VII, section 3(a)

immediately stand out. First, article VII, section 3(a) adopts a

mandatory, self-executing exemption, but only for property owned

and used exclusively by a municipality. It is undisputed that, as

used in the 1968 constitution, the term “municipality” does not

include a county. Second, the constitutional exemption applies to

property owned by a municipality but located outside its

boundaries, subject only to the enactment of a general law requiring

the municipality to “make payment to the taxing unit in which the

property is located.” Third, although article VII, section 3(a) retains

a list of permitted exemptions, property used for “municipal

purposes” is no longer on that list.

The most basic takeaway is that the drafters and adopters of

the 1968 constitution took heed of this Court’s decisions in Park-n-

Shop, Alford, and Walden, the last of which reaffirmed the county-

property immunity rule only months before the 1968 constitution

- 36 -
was placed before the voters for adoption. Walden, 210 So. 2d at

195. Informed by our cases holding that state- and county-owned

property is immune from taxation, the drafters and adopters

deemed it unnecessary to include a constitutional provision

accounting for the possible taxation of such property. Article VII,

section 3(a) reflects that decision in two ways: by providing a

mandatory exemption that applies only to property owned and used

by a municipality; and by removing the Legislature’s discretion to

exempt property used for “municipal purposes.”

The latter point is key. In Holbein, decided only two years

before the adoption of the 1968 constitution, our Court had

emphasized that the constitutional validity of Florida’s statutory

exemptions for public property of all kinds depended on the

“municipal purposes” provisions in article IX, section 1, and article

XVI, section 16, of the 1885 constitution. This is what we said:

Since these two sections are the source of all tax
exemptions even the statute, . . . which provides for the
tax exemption of property of the United States, this state
and the public property of the several counties, cities,
villages, towns and districts in this state, used or
intended for public purposes, must come within their
terms. The only way this can be accomplished is by
giving a broad meaning to “municipal purposes” as used

- 37 -
in the foregoing sections of our Constitution and equating
such with “public purposes.”

Holbein, 189 So. 2d at 798.

In my view, it would not be reasonable to suppose that the

drafters and adopters of the 1968 constitution (1) baked into the

constitution an immunity rule that protects county-owned property

only when it is located within the county’s boundaries, and (2)

simultaneously took away the constitutional means for the

Legislature to exempt from taxation a county’s extraterritorial (but

intrastate) property. That result would be anomalous for several

reasons.

First, counties are political subdivisions of the State. Art. VIII,

§ 1(a), Fla. Const. There should be a strong presumption that the

drafters and adopters of the 1968 constitution would want to

preserve legislative discretion to decide the intrastate

intergovernmental tax status of such property. An immunity rule

that applies to all county property, wherever located in the state,

leaves the policy decision in the Legislature’s hands, since the

Legislature always retains the authority to waive any immunity in

whole or in part. By contrast, because the 1968 constitution does

- 38 -
not contemplate discretionary exemptions for county-owned

property, a county-boundary-only rule has the unintended effect of

requiring the taxation of a county’s extraterritorial property, tying

the Legislature’s hands.

Second, an immunity rule that excludes extraterritorial (but

intrastate) county-owned property would contravene public policy

that had been in place continuously from 1895 through 1968. As I

have explained, an express statutory exemption, first adopted in

1895, applied to all county-owned property used or intended for

public purposes. I am unaware of any evidence suggesting that the

1968 constitution was intended to displace that policy.

Third, an immunity rule that excludes extraterritorial (but

intrastate) county-owned property would create an arbitrary

disparity between counties and municipalities. Again, article VII,

section 3(a) excludes a municipality’s extraterritorial property from

taxation unless the Legislature affirmatively requires the

municipality “to make payment to the taxing unit in which the

property is located.” An all-county-property immunity rule would

equalize the treatment of counties and municipalities, since an

affirmative waiver of immunity would be the equivalent of the

- 39 -
payment-requiring mechanism contemplated in article VII, section

3(a) for municipalities. Cf. Holbein, 189 So. 2d at 799 (“It would be

unreasonable to hold that the authors of our [1885] Constitution

intended to permit the exemption of property held by municipalities

from taxation while not extending such exemption to property held

by counties, the state and other governmental units.”).

In sum, an immunity rule that applies to all county-owned

property is consistent with the structure and logic of the 1968

constitution; the majority’s boundary-limited immunity rule is not.

III.

Even if the tax immunity rule applies to all county-owned

property, there is no question that the State can waive that

immunity in whole or in part by authorizing the taxation of such

property. Pasco County makes the fallback argument that section

196.199 does just that, as to county-owned property that is not

used for a governmental purpose. Section 196.199(1)(c), initially

adopted as part of 1971’s “Tax Reform Act,” see ch. 71-133, Laws of

Fla., declares: “All property of the several political subdivisions and

municipalities of this state . . . which is used for governmental,

municipal, or public purposes shall be exempt from ad valorem

- 40 -
taxation, except as otherwise provided by law.” § 196.199(1)(c).

The argument is that, even though the statute continues to speak of

“exemption” from taxation, it is best read as a limited waiver of

sovereign immunity.

There is academic support for this interpretation of the

statute. See David M. Hudson, Governmental Immunity and

Taxation in Florida, 9 U. Fla. J.L. & Pub. Pol’y 221 (1998). And

reading the text this way honors the interpretive rule that, where

possible, statutes should be construed in a manner that makes

them effective. To date, it has been assumed that the county-

owned property immunity rule, whatever its geographic scope, does

not include a requirement that the owning county use the property

for public purposes. That version of the immunity rule ignores the

use limitation, applicable to all county-owned property, embodied in

section 196.199(1)(c).

In any event, this issue was not litigated in the proceedings

below. It warrants consideration on remand, assuming Pasco

County raised the argument in the trial court.

CANADY, J., concurs.

- 41 -
Application for Review of the Decision of the District Court of Appeal
Certified Great Public Importance & Class of Constitutional
Officers

Second District - Case No. 2D2017-1040

(Pasco County)

Christy Donovan Pemberton, Managing Assistant County Attorney,
and Donald S. Crowell, Chief Assistant County Attorney, Pinellas
County Attorney’s Office, Clearwater, Florida,

for Petitioner

Loren E. Levy and Sydney E. Rodkey of The Levy Law Firm,
Tallahassee, Florida,

for Respondent Mike Wells, Jr., successor to Gary Joiner,
Pasco County Property Appraiser

Frederick T. Reeves of Frederick T. Reeves, P.A., New Port Richey,
Florida, and H. Clyde Hobby of Hobby & Hobby, P.A., New Port
Richey, Florida,

for Respondent Mike Fasano, Pasco County Tax Collector

Edward G. Guedes of Weiss Serota Helfman Cole & Bierman, P.L.,
Coral Gables, Florida,

for Amicus Curiae Florida Association of County Attorneys

- 42 -