Tuesday, August 31, 2010

IT'S LONG PAST TIME FOR AN ANTI-BRIBERY CAMPAIGN HERE IN ST. JOHNS COUNTY, FLORIDA








Former Republican County Commission Chairman JAMES BRYANT is exposed in the Ponte Vedra Recorder last week (see "The House that Jim Built", below). Former Republican Former St. Johns County Commission Chair THOMAS G. MANUEL is now federal prisoner number #32566-018, incarcerated at the federal prison in Butner, North Carolina.

MANUEL was not the first public official in St. Johns County to take a bribe.

We need an anti-bribery campaign in St. Johns County and St. Augustine and the other government agencies here. A St. Augustine Record editorial didn't quite call for that, as I have for months. Instead, it acts like bribery was a one-time event instead of commonplace.

How revealing -- the Record ignores the evidence of its own senses, refuses to print the news and praises GEORGE McCLURE (of all people), a seedy lobbyist for environmental devastators, who gets off on his representing speculators like ROBERT MICHAEL GRAUBARD.

Of course, people who are offered bribes should turn in the bribepayer.

Of course, people who are asked to give bribes should turn in the public official.

A culture of corruption can be changed one day at a time, just as courageous citizens have done in Sicily.

Stand up to bribepayers and bribetakers, who destroy our democracy.

Interesting that there's still never been one editorial in local newspapers against bribery and calling for an anti-bribery campaign, even though our former Republican County Commission Chair THOMAS MANUEL is pleading guilty tomorrow, after ndictment for bribery,for accepting $60,000.

In fact, when MANUEL pled guilty, the WRecKord omitted the fact that MANUEL was a REPUBLICAN.

One-party rule wasn't even relevant to the two reporters who covered the MANUEL plea. (A chronology did say "GOP", but neither article said "REPUBLICAN.")

In fact, when former NYC Police Commissioner (and George W. Bush Homeland Security nominee) BERNARD KERIK was sentenced to four years in prison, the WrecKord omitted that fact too.

Oleaginous St. Augustine corporate lawyer GEORGE McCLURE, longtime developer lawyer who shows his open contempt for public particpation in government, was scheduled to be a witness against MANUEL. Did McCLURE get a deal from federal prosecutors? If not, why would be McCLURE testifying? Is this a sudden pang of conscience after inflicting so many ugly, tree-killing, wetland-destroying projects on our community?

What do you reckon?

Will St. Johns County and St. Augustine return to business as usual?

What's next?

Five Quotes to Live by (From the New Oval Office Rug)


The five quotes chosen by President Barack Obama for the Oval Office
rug:
“The only thing we have to fear is fear itself.” -
President Franklin D. Roosevelt.
“Government of the people, by the people, for the
people.” - President Abraham Lincoln.
“The arc of the moral universe is long, but it bends
towards justice.” - Martin Luther King Jr.
“No problem of human destiny is beyond human beings.” -
President John F. Kennedy.
“The welfare of each of us is dependent fundamentally upon
the welfare of all of us.” - President Theodore Roosevelt.

Time to Roll Up Our Sleeves and Elect Democrats on November 2


To uphold democracy and protect the people against the greedy, I'm voting for Alex Sink for Governor, Heather Beaven for Congress, Dan Gelber for Attorney General, Doug Courtney for State Representative, Debra Gianoulis for State Senator, Scott Maddox for Commissioner of Agriculture and Commerce and Lorrane Ausley for Chief Financial Officer.

We shall overcome!

Five Cheers for the Florida Supreme Court for Kicking Three Misleading Amendments off Ballot, While Upholding Two Fair Districting Amendments



Thank God for the Florida Supreme Court.

The Florida Supreme Court today upheld Amendments 4&5, which will ban gerrmanderying and require fair legislative districts for Congress and the State Legislature.

Florida's Supreme Court today also kicked three misleading constitutional amendments off the ballot -- they would have neutered the fair districting amendments, interfered with federal health care reforms and given selective homestead exemptions for people buying property this year.

Five cheers for the Florida Supreme Court, whose ineluctable logic is represented in haec verba below.

Cheers to all of the progressive litigants and lawyers including NAACP and lawyer Mark Herron), who brought the lawsuits challenging the Republican Amendments, tried their cases and won in the Florida Supreme Court today.

These four cases are instructive in Florida's Constitution and how well written it is -- you can put an amendment on the ballot, but you can't deceive the people. As Lincoln said, "You can fool all the people some of the time, and some of the people all the time, but you cannot fool all the people all the time."

But you can't fool the Florida Supreme Court.

We've got a problem in Tallahassee -- it is fascist, one party Republican misrule by the party of hate and greed -- a dysfunctional government by lugubrious goobers, as evidenced by:
A. Our wicked, evil lobbyist-State Senator (John Thrasher), the demonic chair of the Republican Florida Party; and
B. Our other-directed-State Representative (William Proctor), the walking conflict of interest from Flagler College, that misguided cognitive miser.

As we all saw during the 2000 Bush v. Gore cases, Florida is blessed with a wonderful Supreme Court, partly thanks to Governor Lawton Chiles.

Again, thank God for the Florida Supreme Court.

Palm Beach Post: Supreme Court tosses legislature’s amendments off ballot

by Dara Kam | August 31st, 2010

The Florida Supreme Court today threw out three proposed constitutional amendments placed on the November ballot by lawmakers.

The court tossed an amendment that would have watered down two other amendments put on the ballot by citizens’ petition dealing with redistricting, another designed to give tax breaks to first-time home-buyers and a third passed by lawmakers opposed to federal health care reforms.

The Supreme Court found that all three legislative proposals were misleading and struck them from the ballot.

The court also today refused to remove two proposed amendments put on the ballot by citizens’ initiative that would revamp the way congressional and legislative districts are drawn.

All constitutional amendments require 60 percent approval by voters to pass.

St. Petersburg Times: Florida Supreme Court keeps three amendments from ballot

By Lee Logan, Times/Herald Tallahassee Bureau
Posted: Aug 31, 2010 07:33 PM
TALLAHASSEE — The November ballot just got less crowded.

The state Supreme Court on Tuesday affirmed lower court rulings to strike three ballot amendments proposed by the Legislature concerning redistricting, the new federal health care law and property taxes.

The rulings, all decided by a 5-2 majority, mean voters will have their say on only six initiatives on Nov. 2. A separate decision by the high court rejected a challenge to Amendments 5 and 6, the so-called Fair Districts amendments, meaning they will stay on the ballot.

"To say that we're pleased would be a tremendous understatement," said Ron Meyer, an attorney who defended the Fair Districts effort. Those two amendments seek to prohibit lawmakers from drawing political boundaries to benefit a political party or candidate.

The Supreme Court ruled that the related Amendment 7, drafted by lawmakers to "clarify" 5 and 6, would not stay on the ballot. Incoming Senate President Mike Haridopolos and other supporters say their amendment was needed to protect minority voting rights enshrined in federal law.

"It is a sad day when more than 60 percent of the elected representatives of the people of the state of Florida can't get ballot measures approved by the court but special interest groups can," Haridopolos said in a statement.

The court ruled that the proposed amendment could undermine a current requirement that districts be "contiguous," or that all portions of a district touch another part. The ruling said the amendment was misleading because it did not tell voters about its effect on that requirement.

The court also took issue with the amendment's title, which reads, "Standards for Legislature to Follow in Legislative and Congressional Redistricting."

"While purporting to create and impose standards upon the Legislature in redistricting, the amendment actually eliminates actual standards and replaces them with discretionary considerations," the court ruled in an opinion written by Justice Barbara Pariente.

In a dissenting opinion, Chief Justice Charles Canady argued that the contiguity requirement is not subverted because Amendment 7 would require lawmakers to "implement" new and existing redistricting guidelines.

"The chief purpose of Amendment 7 is clearly articulated and presented to the voters in the ballot summary, which sets forth verbatim the operative text of the amendment," Canady wrote. "The text of the amendment speaks for itself, and it conceals nothing from the voters."

In a separate case, the court agreed to strike down Amendment 9, which was drafted in response to the new federal health care law to prohibit Florida from participating in any health insurance exchange that compels people to buy insurance.

A lower court ruled against the amendment because its proposed summary contained misleading phrases. In place of the summary, proponents argued the court should place the full text of the amendment on the ballot.

Supporters noted that a unanimous court in 2004 placed the full text of an abortion-related amendment on the ballot.

"The remedy was simple, let's just put the wording of the amendment on the ballot," said Sen. Carey Baker, a key sponsor of the Health Care Freedom amendment. "And they came up with some convoluted reason why they couldn't do that."

Justice Peggy Quince wrote in the opinion released Tuesday that lawmakers expressly voted to put their summary on the ballot instead of the amendment's full text. She also wrote that the court acknowledges it made a mistake in the 2004 because that ruling "is not consistent with a long line of cases involving proposed constitutional amendments."

Pariente, Quince and Justice Fred Lewis were on the court in 2004, and all agreed to strike Amendment 9 from this year's ballot.

Baker, R-Eustis, said the rulings might spur the Legislature to create a better method for lawmakers to propose amendments. He said such a system might include a "pre-review" before the Supreme Court that is required of citizen amendments.

The court, in another 5-2 decision, also removed Amendment 3, which would have given extra tax breaks to first-time home buyers.

The justices ruled that a summary of the amendment was misleading because it did not tell voters that the tax break applies only to property bought after Jan. 1, 2010. The court also said the summary should have used a more clear definition of "first-time homestead."

Proposed amendments require 60 percent voter approval to be added to the state Constitution.

Lee Logan can be reached at llogan@sptimes.com or (850) 224-7263.

Florida Independent: Amendments 3, 7 and 9 off Florida’s November ballots, redistricting amendments still on

By Cooper Levey-Baker 8/31/10 5:08 PM

The Florida Supreme Court ruled today to prevent three ballot measures that were proposed by the Florida legislature from appearing on the state’s November ballot, among them the controversial Fair Districts “poison pill” that would have blunted the anti-gerrymandering effect of Amendments 5 and 6, and the so-called “Health Care Freedom” amendment, which would have prevented the implementation of the federal government’s health care reform in Florida.

The court also ruled that Amendments 5 and 6 — which, if passed, will create new rules for how legislative districts are drawn —will stand. The two amendments had been challenged by Reps. Corrine Brown, D-Jacksonville, and Mario Diaz-Balart, R-Miami.

IN HAEC VERBA: Florida Supreme Court's Decision Today to Exclude Admittedly Misleading Health Care Amendment From Ballot

Supreme Court of Florida
____________
No. SC10-1527
____________
FLORIDA DEPARTMENT OF STATE, etc., et al.,
Appellants,
vs.
MONA MANGAT, et al.,
Appellees.
[August 31, 2010]
PER CURIAM.
The Florida Department of State and the Secretary of State appealed a judgment of the circuit court to the First District Court of Appeal, which in turn certified to this Court that the judgment is of great public importance and requires immediate resolution by this Court. We have jurisdiction. See art. V, § 3(b)(5), Fla. Const. For the reasons explained below, we affirm the judgment of the circuit court in this case.
FACTUAL AND PROCEDURAL HISTORY
This case involves a joint resolution of the Florida Legislature that proposes an amendment to the Florida Constitution creating a new section relating to health
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care services in article I of the Florida Constitution. See Fla. H.J. Res. 37 (2010) (joint resolution proposing article I, section 28 of the Florida Constitution relating to health care services) (hereinafter Joint Resolution). The proposed amendment, which has been designated as Amendment 9 by the Division of Elections, was passed by the constitutionally required three-fifths vote of the membership of each house during the 2010 Florida legislative session. The Joint Resolution contained the text of the proposed amendment and a ballot title and summary that the Legislature specified should be placed on the ballot. The full text of the proposed amendment provides: SECTION 28. Health care services.— (a) To preserve the freedom of all residents of the state to provide for their own health care: (1) A law or rule may not compel, directly or indirectly, any person, employer, or health care provider to participate in any health care system. (2) A person or an employer may pay directly for lawful health care services and may not be required to pay penalties or fines for paying directly for lawful health care services. A health care provider may accept direct payment for lawful health care services and may not be required to pay penalties or fines for accepting direct payment from a person or an employer for lawful health care services. (b) Subject to reasonable and necessary rules that do not substantially limit a person‘s options, the purchase or sale of health insurance in private health care systems may not be prohibited by law or rule. (c) This section does not: (1) Affect which health care services a health care provider is required to perform or provide. (2) Affect which health care services are permitted by law.
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(3) Prohibit care provided pursuant to general law relating to workers‘ compensation. (4) Affect laws or rules in effect as of March 1, 2010. (5) Affect the terms or conditions of any health care system to the extent that those terms and conditions do not have the effect of punishing a person or an employer for paying directly for lawful health care services or a health care provider for accepting direct payment from a person or an employer for lawful health care services, except that this section may not be construed to prohibit any negotiated provision in any insurance contract, network agreement, or other provider agreement contractually limiting copayments, coinsurance, deductibles, or other patient charges. (6) Affect any general law passed by a two-thirds vote of the membership of each house of the legislature after the effective date of this section, if the law states with specificity the public necessity that justifies an exception from this section. (d) As used in this section, the term: (1) ―Compel‖ includes the imposition of penalties or fines. (2) ―Direct payment‖ or ―pay directly‖ means payment for lawful health care services without a public or private third party, not including an employer, paying for any portion of the service. (3) ―Health care system‖ means any public or private entity whose function or purpose is the management of, processing of, enrollment of individuals for, or payment, in full or in part, for health care services, health care data, or health care information for its participants. (4) ―Lawful health care services‖ means any health-related service or treatment, to the extent that the service or treatment is permitted or not prohibited by law or regulation, which may be provided by persons or businesses otherwise permitted to offer such services.
(5) ―Penalties or fines‖ means any civil or criminal penalty or fine, tax, salary or wage withholding or surcharge, or named fee with a similar effect established by law or rule by an agency established, created, or controlled by the government which is used to punish or discourage the exercise of rights protected under this section. For purposes of this section only, the term ―rule by an agency‖ may not be construed to mean any negotiated provision in any insurance contract, network agreement, or other provider
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agreement contractually limiting copayments, coinsurance, deductibles, or other patient charges. Joint Resolution at 1-3. The Joint Resolution also provided that the following title and summary be placed on the ballot: HEALTH CARE FREEDOM CONSTITUTIONAL AMENDMENT ARTICLE I, SECTION 28
HEALTH CARE SERVICES.—Proposing an amendment to the State Constitution to ensure access to health care services without waiting lists, protect the doctor-patient relationship, guard against mandates that don‘t work, prohibit laws or rules from compelling any person, employer, or health care provider to participate in any health care system; permit a person or an employer to purchase lawful health care services directly from a health care provider; permit a health care provider to accept direct payment from a person or an employer for lawful health care services; exempt persons, employers, and health care providers from penalties and fines for paying directly or accepting direct payment for lawful health care services; and permit the purchase or sale of health insurance in private health care systems. Specifies that the amendment does not affect which health care services a health care provider is required to perform or provide; affect which health care services are permitted by law; prohibit care provided pursuant to general law relating to workers‘ compensation; affect laws or rules in effect as of March 1, 2010; affect the terms or conditions of any health care system to the extent that those terms and conditions do not have the effect of punishing a person or an employer for paying directly for lawful health care services or a health care provider for accepting direct payment from a person or an employer for lawful health care services; or affect any general law passed by two-thirds vote of the membership of each house of the Legislature, passed after the effective date of the amendment, provided such law states with specificity the public necessity justifying the exceptions from the provisions of the amendment. The amendment expressly provides that it may not be construed to prohibit negotiated provisions
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in insurance contracts, network agreements, or other provider agreements contractually limiting copayments, coinsurance, deductibles, or other patient charges. Joint Resolution at 3-5. Florida voters Mona Mangat, Diana Demarest, Gracie Fowler, and Louisa McQueeney filed a complaint, asking the Second Judicial Circuit Court to determine whether the ballot summary passed by the Legislature complies with the requirements of section 101.161(1), Florida Statutes (2009), and the various appellate court decisions that have applied and interpreted the requirements of that statutory provision. The parties submitted memoranda of law to the court and the court heard arguments at a hearing in July. In addition, the Florida Senate and House of Representatives filed amicus briefs addressing the available remedies should the circuit court find the ballot summary defective. The circuit court issued an order determining that the ballot summary was misleading and should be removed from the ballot of the November 2, 2010, general election.
The circuit court found three statements in the introduction of the ballot summary to be misleading. The court noted that a citizen reading the statement ―to ensure access to health care services without waiting lists‖ ―could only conclude that once [the amendment was] passed a constitutional right would exist to obtain a doctor of one‘s choice without being put on a waiting list,‖ while the amendment itself says nothing about waiting lists. The court noted that a second statement in
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the ballot summary provides that the amendment will ―protect the doctor-patient relationship,‖ but the amendment itself says nothing about this relationship and does not have anything to do with doctor-patient confidentiality. Finally, the summary states that the amendment will ―guard against mandates that don‘t work,‖ but neither the summary nor the amendment explains what mandates are at issue, why they do not work, or for whom the mandates do not work. The court concluded that this statement is a subjective term intended to influence a voter‘s decision on the amendment. The circuit court concluded that all of these phrases are examples of comments that this Court has held may not be included in ballot summaries. Thus, the circuit court found that the ballot summary contained in the Legislature‘s Joint Resolution did not meet the requirements of section 106.101(1), Florida Statutes (2009). The amici and the Secretary of State asked the circuit court to substitute the text of the proposed amendment for the ballot summary, rather than striking the proposed amendment from the November ballot. The circuit court ruled that it did not have authority to grant this remedy because its limited function was to determine whether the ballot summary, ballot title, and the amendment comply with the requirements of the Florida Constitution and section 101.161(1). The court stated that it was not empowered to correct the acts of the Legislature, even if its failure to do so resulted in the amendment being struck from the ballot.
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The Department of State filed a notice of appeal in the First District Court of Appeal and also filed an unopposed suggestion for certification of the case to this Court. The First District certified that the final judgment of the trial court presents issues of great public importance that require immediate resolution by this Court. We have expedited our review of the case in light of the time constraints for printing the ballot for the November general election.
ANALYSIS In most ballot summary cases, we are asked to determine whether the ballot summary for a proposed constitutional amendment meets the constitutional and statutory requirements for accuracy. In the instant case, however, the Appellant does not ask the Court to look at the lower court‘s determination that the ballot summary set forth in the Joint Resolution is misleading. In fact, the Appellant concedes that the ballot summary is misleading. Rather, the Appellant focuses entirely on the applicable remedy after such a determination has been made. The Appellant argues that the Court should substitute the text of the proposed amendment contained in the Joint Resolution for the misleading ballot summary on the November ballot and permit the voters to determine whether the proposed amendment will become part of the Florida Constitution.
We agree with the circuit court‘s determination that the ballot summary for Amendment 9 does not meet the statutory or constitutional requirements for
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accuracy. The first two statements that the circuit court found misleading are classic examples of a ballot summary ―flying under false colors‖ as the amendment does not address ―waiting lists‖ or ―the doctor-patient relationship‖ at all. These statements do not give fair notice of the purpose and effect of the amendment. Even if the amendment is approved by the voters, it will not create a constitutional right to access health care services without a waiting list and will not affect the doctor-patient relationship.
While the third statement about ―mandates that don‘t work‖ might arguably have a relationship to the amendment which is intended to prevent mandated participation in any health care system, neither the amendment nor the summary identifies what mandates are at issue, explains how the mandates do not work, or specifies for whom they do not work. Thus, this statement is ambiguous. It appears to be a reference to the federal health care mandate, which is the type of political rhetoric that this Court has condemned in other cases. See In re Advisory Op. to the Att‘y Gen. re Additional Homestead Tax Exemption, 880 So. 2d 646, 653 (Fla. 2004) (concluding that use of the phrase ―provides property tax relief‖ in the ballot summary ―constitutes political rhetoric that invites an emotional response from the voter by materially misstating the substance of the amendment‖); Advisory Op. to the Att‘y Gen. re Tax Limitation, 644 So. 2d 486, 490 (Fla. 1994) (stating that the ballot summary must be accurate and informative
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and ―objective and free from political rhetoric‖); In re Advisory Op. to the Att‘y Gen.—Save Our Everglades, 636 So. 2d 1336, 1341-42 (Fla. 1994) (finding ―emotional language‖ of ballot title and summary to be misleading as it resembled ―political rhetoric‖ more than ―an accurate and informative synopsis‖); Evans v. Firestone, 457 So. 2d 1351, 1355 (Fla. 1984) (holding ballot summary defective in part because phrase ―thus avoiding unnecessary costs‖ constituted ―editorial comment‖). The Court has repeatedly stated that the ―ballot summary should tell the voter the legal effect of the amendment, and no more.‖ Evans, 457 So. 2d at 1355. The Court has also condemned ―[p]olitical rhetoric in a ballot title and summary that invites an emotional response from the voters as opposed to providing only a synopsis of a proposed amendment.‖ Advisory Op. to Att‘y Gen. re Fla. Marriage Prot. Amendment, 926 So. 2d 1229, 1238 (Fla. 2006). Because the misleading statements in the ballot summary here do not reflect the true legal effect of the proposed amendment, the ballot summary does not comply with the requirements of section 101.161(1) that the substance of the amendment be printed in ―clear and unambiguous language on the ballot.‖ It also does not comply with the implicit accuracy requirement of article XI, section 5 of the Florida Constitution. Thus, we affirm the circuit court‘s conclusion that the ballot summary for Amendment 9 is invalid.
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Next, we turn to the Appellant‘s argument concerning the appropriate remedy in this case. Prior to 2000, all proposed amendments were subject to a requirement that ―[t]he substance of the amendment or other public measure shall be an explanatory statement, not exceeding 75 words in length, of the chief purpose of the measure.‖ § 101.161(1), Fla. Stat. (1999). In 2000, however, the Legislature revised this requirement. See ch. 2000-361, § 1, at 4035, Laws of Fla.1 The current law now provides: ―Except for amendments and ballot language proposed by joint resolution, the substance of the amendment or other public measure shall be an explanatory statement, not exceeding 75 words in length, of the chief purpose of the measure.‖ § 101.161(1) (emphasis added).
Based upon this new statutory language, we agree with the Appellant that the Legislature is not limited to 75 words in a ballot summary. See Sancho v. Smith, 830 So. 2d 856, 859 (Fla. 1st DCA 2002) (―The effect of this change in the statute is to exempt the Florida Legislature from the 75-word limit applicable to a ballot summary for an amendment by citizen initiative or by another authorized method of amending the constitution.‖). Indeed, the Legislature is not required to
1. The First District Court upheld this statutory change against an equal protection challenge in 2007. See Florida Hometown Democracy, Inc. v. Cobb, 953 So. 2d 666 (Fla. 1st DCA 2007). The district court explained that the process whereby a legislative proposal reaches the ballot is different from the process utilized for a citizen‘s initiative petition and requires that the ―Legislature have the freedom to adequately explain the proposed change in a more lengthy ballot summary.‖ Id. at 676.
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provide a ballot summary.2 Instead, the Legislature may resolve to place the exact text of a proposed amendment on a voter ballot. 3 However, the Joint Resolution in this case specifically provides that the summary language be placed on the ballot. The Joint Resolution says nothing about placing the text of the actual amendment on the ballot. Nevertheless, the Appellant argues that this Court should ―sever‖ the misleading ballot summary language from the Joint Resolution and place the text of the proposed amendment itself on the ballot. For the reasons stated below, we conclude that there are several problems with the remedy proposed in this case, including that the Appellant actually seeks substitution rather than severance of language and that this Court does not have authority to substitute language for that the Legislature has clearly intended to appear on the ballot.
2. However, if the Legislature chooses to include a ballot summary, it must be an ―explanatory statement . . . of the chief purpose of the measure.‖ § 101.161(1), Fla. Stat. (2009). 3. Although the Legislature may place the full text of an amendment on a ballot without a ballot summary, the amendment text must still meet the accuracy requirements of article XI, section 5 of the Florida Constitution, as codified in section 101.161(1), Florida Statutes. Under these circumstances, the text of the amendment must serve the purpose of the ballot summary, i.e., advise the electorate of ―the true meaning, and ramifications, of an amendment.‖ Askew v. Firestone, 421 So. 2d 151, 156 (Fla. 1982). We do not reach the Appellant‘s argument that the text of Amendment 9 would satisfy these requirements, based on our conclusion that the remedy of substitution is not available in this case.
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Severability is a judicially created doctrine which recognizes a court‘s obligation to uphold the constitutionality of legislative enactments where it is possible to remove the unconstitutional portions. Ray v. Mortham, 742 So. 2d 1276, 1280 (Fla. 1999). It is ―derived from the respect of the judiciary for the separation of powers, and is ‗designed to show great deference to the legislative prerogative to enact laws.‘‖ Id. (quoting Schmitt v. State, 590 So. 2d 404, 415 (Fla. 1991)).
Indeed, Florida courts have stricken invalid portions of legislative enactments and have permitted the remainder to be preserved as valid law. See, e.g., Florida Hosp. Waterman, Inc. v. Buster, 984 So. 2d 478, 493-94 (Fla. 2008) (severing several subsections from a statute that unconstitutionally impinged upon the ―Patients‘ right to know about adverse medical incidents‖ provision in the Florida Constitution). We have also applied the doctrine to a citizen-initiated constitutional amendment in one instance. See Ray, 742 So. 2d at 1280-84. (severing provisions relating to federal legislators from voter-approved constitutional amendment that imposed term limits on elected state officials). However, this Court has historically applied the severability doctrine to a statute or amendment after it has been enacted by the Legislature or approved by the voters. See, e.g., Ray, 742 So. 2d at 1281 (―The issue of severability arises only after an amendment already approved by voters has been challenged.‖). In this case, this
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Court is not reviewing a legislative enactment or an approved constitutional amendment, but rather a joint resolution containing a proposed amendment that has not yet been submitted to the voters for approval. While the Appellant speaks in terms of ―severance,‖ the remedy being proposed is in fact a substitution of other language for the ballot summary. The Joint Resolution specifically provides that the ballot summary appear on the ballot. The Legislature ―resolved‖ that the proposed Health Care Services amendment would be represented on the ballot by the ballot title and summary. The Legislature did not resolve to place the entire text of the proposed amendment on the ballot. Thus, if the summary is struck from the ballot, it leaves nothing but the ballot title for the voters to consider. Therefore, the solution the Appellant seeks is substitution, not severance, of the ballot summary. The severability doctrine has only been used to strike objectionable language. It is not a vehicle for the wholesale substitution of other language for language that is stricken.
Further, in the context of a ballot summary review, we have not severed defective language from a ballot summary that contains misleading or ambiguous language. Instead, we have stricken the misleading summary from the ballot, thereby removing the proposed amendment from a vote of the electorate. See, e.g., Askew v. Firestone, 421 So. 2d 151, 156 (Fla. 1982) (striking from the ballot a proposed constitutional amendment regarding the ban on lobbying by former
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legislators based on the misleading ballot summary in the joint resolution); Advisory Op. to Att‘y Gen. re 1.35% Property Tax Cap, Unless Voter Approved, 2 So. 3d 968, 977 (Fla. 2009) (striking from the ballot a misleading ballot summary in a citizens‘ initiative petition relating to property tax cap). The Appellant suggests that the Court‘s paramount focus should be the Legislature‘s intent in passing the joint resolution, i.e., that the proposed Health Care Services amendment be put to the vote of Florida citizens. While we acknowledge this intent, we are also cognizant that the Legislature clearly expressed its intent that a summary of the amendment, rather than the text of the amendment or both the summary and the text, appear on the ballot to be presented to Florida voters. This Court does not have the authority to substitute the language that three-fifths of the members of the Legislature have voted to place on the ballot.
The Appellant relies heavily on the fact that this Court ordered substitution of the text of a proposed amendment in a previous case. See ACLU v. Hood, No. SC04-1671 (Fla. Sept. 2, 2004) (unpublished order directing the Secretary of State to remove the ballot summary and replace it with the actual text of the proposed amendment). We note that the Court‘s direction in ACLU was issued through an unpublished order that contained no explanation, analysis, or authority for the Court‘s action. Id. However, to the extent that our order in ACLU is viewed as
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authority for the remedy the Appellant requests in this case, we specifically recede from ACLU as it is not consistent with a long line of cases involving proposed constitutional amendments. We have faithfully reviewed proposed amendments for compliance with the ―strict minimum for ballot clarity‖ and not ventured into fixing problems with the ballot language. Armstrong v. Harris, 773 So. 2d 7, 21 (Fla. 2000); see also Askew, 421 So. 2d at 155. Our role in this process is as a reviewer of constitutional validity, not as an editor or author. For example, in Smith v. American Airlines, Inc., 606 So. 2d 618 (Fla. 1992), where we found the ballot summary for an amendment proposed by the Taxation and Budget Reform Commission to be fatally defective, we specifically stated that the Court has no ―authority to independently rewrite the ballot summary to conform to the [requirements of section 101.161(1)].‖ Id. at 621. Rather than fixing the problem with the ballot summary, we struck the amendment proposed by the Commission from the general election ballot. Id. at 622. Pursuant to our role and precedent, the only remedy in the instant case is to strike the proposal from the ballot.
Moreover, although the Appellant argues that the striking of the entire amendment in this case thwarts legislative intent by preventing Florida voters from voting on the merits of the proposal, we have previously asked the Legislature to establish a procedure that would avoid this problem. See American Airlines, 606 So. 2d at 622 (―In order to prevent this problem from recurring in the future, we
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urge the legislature to consider amending the statute to empower this Court to fix fatal problems with ballot summaries, at least with respect to those amendments proposed by revision commissions or the legislature.‖); see also Askew, 421 So. 2d at 157 (Overton, J., concurring) (suggesting a process whereby misleading ballot language can be challenged and corrected in sufficient time to allow the people to vote on the proposal); Armstrong, 773 So. 2d at 25-26 (Pariente, J., specially concurring) (agreeing with Justice Overton‘s concerns in Askew). The Legislature has yet to establish such a process. Finally, if we were to place the entire text of the amendment on the ballot we would be ignoring the Legislature‘s explicit language that the ballot summary and title be placed on the ballot. Indeed, if the Legislature had intended for the text of Amendment 9 to be placed on the ballot along with the summary, it could have done so. See Sancho v. Smith, 830 So. 2d 856, 861-62 (Fla. 1st DCA 2002) (concluding that the ballot summary accurately described the proposed amendment and noting that the summary included a copy of the full text of the amendment). In this case, the ballot language put forth by the party proposing the constitutional amendment contains misleading and ambiguous language. Currently, our only recourse is to strike the proposed constitutional amendment from the ballot, thereby removing it from a vote of the electorate. See, e.g., Askew, 421 So. 2d at 156.
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CONCLUSION For the reasons explained above, we affirm the circuit court‘s order finding the ballot summary for Amendment 9 does not meet the requirements of section 101.161(1) and therefore may not be included on the November 2010 ballot. No motion for rehearing will be entertained. It is so ordered. QUINCE, LABARGA and PERRY, JJ., concur. PARIENTE, J., concurs in result with an opinion. LEWIS, J., concurs in result. CANADY, C.J., dissenting with an opinion, in which POLSTON, J., concurs. NO MOTION FOR REHEARING WILL BE ALLOWED. PARIENTE, J., concurring in result.
I agree with the majority that it would be inappropriate in this case for this Court to substitute a lengthy and complex amendment in lieu of a misleading ballot summary for placement on the ballot.4 As the majority has explained, the
4. I recognize that this Court did substitute the full amendment for the ballot summary in ACLU v. Hood, No. SC04-1671, an order entered on September 2, 2004. That proposed amendment provided for parental notification of a termination of a minor‘s pregnancy, and its intent was to nullify existing case law from the Florida Supreme Court that had interpreted the minor‘s right of privacy as precluding parental notification. We entered the order without citing to any precedential authority. As to whether we should follow that procedure in the future, including this case, I would point out that the amendment in ACLU v. Hood consisted of a one-paragraph section with three sentences. The ballot summary had tracked the amendment except that it omitted a reference that the amendment
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Legislature voted to place only the summary on the ballot, and the Legislature does not contest that the summary it proposed was misleading. Rather than a simple and straightforward amendment, the text of Amendment 9 is lengthy and complex. In this case, I would conclude that an explanation of its chief purpose and effect would be required. If the intent of the proposed amendment was to avoid federal mandates that have been placed into recently enacted federal laws regarding health care and health insurance, that purpose should be clearly and unambiguously set forth. Instead, the ballot summary claimed its purpose was to ―ensure access to health care services without waiting lists, protect the doctor-patient relationship,‖ and ―guard against mandates that don‘t work.‖ I assume this latter phrase was a veiled reference to the Legislature‘s view of recently passed federal health care legislation.
As stressed repeatedly by this Court, it is of paramount importance that the voters have fair notice of the purpose and effect of the proposed amendment before they cast a vote. For some proposed amendments, the purpose and effect of the proposed change may be readily apparent based on the full text of the proposed amendment itself. However, more lengthy and complex amendments will certainly require an explanatory statement to explain the impact of the amendment and the effect on existing constitutional provisions. See, e.g., Askew v. Firestone, 421 So.
would impact the minor‘s right of privacy already provided for in article I, section 23, of the Florida Constitution.
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2d 151, 155 (Fla. 1982) (striking a proposed legislative amendment from the ballot because although the ballot summary tracked the text of the proposed amendment, the summary failed to explain that the amendment was intended to replace an already existing constitutional provision that imposed an absolute two-year ban on lobbying by former legislators). I concur in the result because I would not reach the issue in this case of whether the Legislature can, in a future case, fulfill its obligation to accurately explain the legal effect of a proposed amendment in clear and unambiguous terms by simply voting to place the entire amendment on the ballot without a summary or explanation. Majority op. at 11. In Sancho v. Smith, 830 So. 2d 856 (Fla. 1st DCA 2002), the Legislature placed on the ballot both a summary explaining in detail the effect of the amendment and the text of the amendment. While it is clear that the Legislature has exempted itself from the 75-word restriction, it is not clear that the Legislature is exempt from the requirement to provide an explanatory statement of the chief purpose of a proposed amendment. In any event, in this case the summary provided by the Legislature was misleading. I agree that it would be impermissible for this Court to substitute the entire lengthy amendment in this case for submission to the voters. For the above reasons, I concur in the result.
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CANADY, C.J., dissenting. I dissent from the majority‘s decision to prevent the people of Florida from voting on amendment 9, the Legislature‘s duly proposed constitutional amendment related to healthcare services. In 2004, this Court considered a challenge to a constitutional amendment proposed by the Legislature similar to the challenge presented here. Amer. Civil Liberties Union of Fla., Inc. v. Hood, No. SC04-1671, 2004 Fla. Lexis 1514 (Fla. Sept. 2, 2004) (ACLU). We resolved that case by issuing an unpublished order requiring the Secretary of State to place on the general election ballot ―the actual text of the amendment itself and not the proposed ballot summary.‖ Id. We should do likewise in the case now before us. The decision in ACLU was not inconsistent with our decision in Smith v. American Airlines, Inc., 606 So. 2d 618 (Fla. 1992). In American Airlines, we made the following observation: ―Neither party argues that this Court has the authority to independently rewrite the ballot summary to conform to the statute, and our independent research has revealed no authority to do so.‖ Id. at 621. This statement by no means resolves the question at issue here. First, the Court‘s comments regarding an issue not raised by the parties should not be viewed as a holding. Second, the comments related to rewriting the ballot summary—not substituting the text of the amendment for the summary.
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In 1992, when this Court decided American Airlines, the Legislature was still subject to the requirement that ―[t]he substance of the amendment . . . shall be an explanatory statement, not exceeding 75 words in length, of the chief purpose of the measure.‖ § 101.161(1), Fla. Stat. (1999). Since the text of the proposed amendment exceeded seventy-five words, placing the full text of the amendment on the ballot was not an option. Thus, the American Airlines Court only had the option of actually rewriting a ballot summary ―not exceeding 75 words in length, of the chief purpose of the measure.‖ That is an entirely different matter than substituting the full text of the proposed amendment contained in the joint resolution for a defective ballot summary. It is clear that in ACLU this Court understood the difference.
Although I recognize that unpublished orders do not constitute binding precedent, it is undeniable that we have looked to such unpublished orders for guidance in the past and that we have not been reluctant to rely on such orders in justifying our decisions. See, e.g., Sims v. State, 998 So. 2d 494, 498 (Fla. 2008) (relying on unpublished orders treating ―belated notices to invoke as timely filed when a late filing was due to some fault of the attorney and beyond the incarcerated defendant‘s control‖ to justify treating petitioner‘s notice to invoke as timely filed); Fla. Bar v. Pape, 918 So. 2d 240, 250 (Fla. 2005) (citing unpublished order to establish that in matters of discipline, ―[w]e have also required that
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attorneys attend the Florida Bar Advertising Workshop‖); Calamia v. Singletary, 686 So. 2d 1337, 1340 (Fla. 1996) (citing unpublished orders of federal district courts to support decision that ―administrative gaintime and provisional credit statutes are . . . not subject to ex post facto proscriptions‖), vacated on other grounds, 520 U.S. 1141 (1997). The Legislature has the authority to propose amendments to the Florida Constitution ―by joint resolution agreed to by three-fifths of the membership of each house of the legislature.‖ Art. XI, § 1, Fla. Const. The elected representatives of the people are thereby empowered to present to the people proposals for amending the people‘s constitution. The courts should act with restraint when we are asked to interpose judicial power to bar the people from voting on a proposal submitted to them by their elected representatives. Here, we could and should demonstrate appropriate restraint by placing on the ballot the ―actual text of the amendment itself and not the proposed ballot summary.‖ ACLU, 2004 Fla. Lexis 1514.
I reject the notion that faithfulness to the intention of the Legislature forecloses us from acting as we did in ACLU. Whenever the Legislature proposes a constitutional amendment, it is overwhelmingly clear that the Legislature‘s objective is to give the people an opportunity to vote on the proposed amendment. Placing the full text of the proposed amendment on the ballot would undeniably be
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consistent with that objective. Failing to place the full text on the ballot undeniably defeats that objective. I also reject the notion that the text of amendment 9 does not adequately inform the voters of the substance of the proposed amendment. Ordinarily, the text of a proposed amendment will necessarily contain the most direct and accurate expression of the substance and effect of the amendment. The text itself may, however, be inadequate to sufficiently inform the voters if the text does not disclose that it will effect the repeal of an existing constitutional provision. But amendment 9 would not repeal any provision of the Florida Constitution. The text of the amendment hides nothing from the voters. I would therefore reverse the trial court‘s order and remand for entry of an order directing that the Secretary of State place on the ballot the full text of the amendment rather than the defective ballot summary. POLSTON, J., concurs. Certified Judgments of Trial Courts in and for Leon County – James Oliver Shelfer, Judge, Case No. 2010-CA-002202 – An Appeal from the District Court of Appeal, First District, Case No. 1D10-4067 Russell S. Kent, Special Counsel for Litigation, and Ashley E. Davis, Assistant Attorney General, Office of the Attorney General, Tallahassee, Florida, C. B. Upton, General Counsel, Florida Department of State, Tallahassee, Florida, for Appellants
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E. Gary Early, Albert T. Gimbel and Mark Herron of Messer, Caparello and Self, P.A., Tallahassee, Florida, for Appellees

IN HAEC VERBA: Florida Supreme Court's Decision Today to Keep Amendments 4&5 (Fair Districts) On November Ballot

Supreme Court of Florida
____________
No. SC10-1508
____________
DAWN K. ROBERTS, etc.,
Appellant,
vs.
BRIAN K. DOYLE, et al.,
Appellees.
[August 31, 2010]
PER CURIAM.
Secretary of State Dawn K. Roberts appealed a judgment of the Second Circuit Court to the First District Court of Appeal, which certified to this Court that the judgment is of great public importance and requires immediate resolution by this Court. We have jurisdiction. See art. V, § 3(b)(5), Fla. Const. Because we agree with the trial court‘s determination that the ballot title and summary for Amendment 3 are clearly and conclusively defective, we affirm.
On July 23, 2010, the trial court ordered that Amendment 3 be removed from the November 2010 general election ballot, finding that ―the ballot title and summary . . . fail to fairly inform the voter, in clear and unambiguous language, of
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the chief purpose of the amendment.‖ Specifically, the court found the ballot title and summary for Amendment 3 ―misleading in two material respects, both involving the additional homestead exemption, a chief aspect of the amendment.‖ First, the court found that ―[n]either the title nor the summary provide notice that the additional exemption is only available for properties purchased on or after January 1, 2010.‖ Second, the court found that the language ―new homestead owners‖ in the title, coupled with ―first-time homestead‖ in the summary, convey the message that to be eligible for the additional homestead exemption, the owner must have never before declared the property homestead. The court further found it misleading that the summary limits the exemption to persons not having owned a ―principal residence‖ during the preceding eight years because Florida law does not define ―principal residence‖ as the equivalent of ―homestead‖ for tax purposes.
For the reasons expressed in detail below, we agree with the court that the ballot title and summary are confusing to the average voter. The lack of an effective date renders it impossible for a voter to know which homeowners would qualify for the exemption. Further, the ballot title and summary fail to mention that a married person could fail to qualify for the exemption because his or her spouse previously owned a residence. Finally, we agree that ―[a] voter reading the title and summary could easily conclude that in order to be eligible for the additional homestead, a property owner would have to meet two conditions: have
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not owned a principal residence during the preceding eight years and have never previously declared the property homestead.‖ General Principles Regarding Proposed Constitutional Amendments The Florida Constitution gives the Legislature authority to propose amendments for submission to the electorate. See art. XI, § 1, Fla. Const. Article XI, section 1, provides that the Legislature may propose an amendment to the Florida Constitution by a ―joint resolution agreed to by three-fifths of the membership of each house of the legislature.‖ Then the proposed constitutional amendment must be ―submitted to the electors at the next general election.‖ Art. XI, § 5(a), Fla. Const. ―Implicit in this provision is the requirement that the proposed amendment be accurately represented on the ballot; otherwise, voter approval would be a nullity.‖ Armstrong v. Harris, 773 So. 2d 7, 12 (Fla. 2000). The accuracy requirement in article XI, section 5, functions as a kind of ―truth in packaging‖ law for the ballot. Id. at 13. The accuracy requirement applies to all proposed constitutional amendments, including those proposed by the Legislature. Id. at 16.
The Court has recognized that ―[a]lthough the constitution does not expressly authorize judicial review of amendments proposed by the Legislature, this Court long ago explained that the courts are the proper forum in which to
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litigate the validity of such amendments.‖ Armstrong, 773 So. 2d at 13-14. Specifically, the Court has stated: Under our system of constitutional government regulated by law, a determination of whether an amendment to the Constitution has been validly proposed and agreed to by the Legislature depends upon the fact of substantial compliance or noncompliance with the mandatory provisions of the existing Constitution as to how such amendments shall be proposed and agreed to, and such determination is necessarily required to be in a judicial forum where the Constitution provides no other means of authoritatively determining such questions. Armstrong, 773 So. 2d at 14 (quoting Crawford v. Gilchrist, 59 So. 963, 966 (Fla. 1912)). Although this Court traditionally has accorded a measure of deference to constitutional amendments proposed by the Legislature, that deference ―is not boundless, for the constitution imposes strict minimum requirements that apply across-the-board to all constitutional amendments, including those arising in the Legislature.‖ Armstrong, 773 So. 2d at 14. The accuracy requirement in article XI, section 5, imposes a strict minimum standard for ballot clarity. This requirement plays no favorites—it applies across-the-board to all constitutional amendments, including those proposed by the Legislature. The purpose of this requirement is above reproach—it is to ensure that each voter will cast a ballot based on the full truth. To function effectively—and to remain viable—a constitutional democracy must require no less. Armstrong, 773 So. 2d at 21.
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Section 101.161(1), Florida Statutes (2009), is a ―codification of the accuracy requirement implicit in article XI, section 5 of the Florida Constitution.‖ Advisory Op. to Att'y Gen. re Referenda Required for Adoption & Amendment Local Gov't Comprehensive Land Use Plans, 902 So. 2d 763, 770 (Fla. 2005). Section 101.161(1) provides: Whenever a constitutional amendment or other public measure is submitted to the vote of the people, the substance of such amendment or other public measure shall be printed in clear and unambiguous language on the ballot after the list of candidates, followed by the word ―yes‖ and also by the word ―no,‖ and shall be styled in such a manner that a ―yes‖ vote will indicate approval of the proposal and a ―no‖ vote will indicate rejection. The wording of the substance of the amendment or other public measure and the ballot title to appear on the ballot shall be embodied in the joint resolution, constitutional revision commission proposal, constitutional convention proposal, taxation and budget reform commission proposal, or enabling resolution or ordinance. Except for amendments and ballot language proposed by joint resolution, the substance of the amendment or other public measure shall be an explanatory statement, not exceeding 75 words in length, of the chief purpose of the measure. In addition, for every amendment proposed by initiative, the ballot shall include, following the ballot summary, a separate financial impact statement concerning the measure prepared by the Financial Impact Estimating Conference in accordance with s. 100.371(5). The ballot title shall consist of a caption, not exceeding 15 words in length, by which the measure is commonly referred to or spoken of.
§ 101.161(1), Fla. Stat. (2009). Thus, section 101.161(1) provides that the substance of a proposed constitutional amendment must be printed on the ballot in ―clear and unambiguous language.‖ This Court has explained ―that
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the ballot [must] be fair and advise the voter sufficiently to enable him intelligently to cast his ballot.‖ Askew v. Firestone, 421 So. 2d 151, 155 (Fla. 1982) (quoting Hill v. Milander, 72 So. 2d 796, 798 (Fla. 1954)). While the ballot title and summary must state in clear and unambiguous language the chief purpose of the measure, they need not explain every detail or ramification of the proposed amendment. Carroll v. Firestone, 497 So. 2d 1204, 1206 (Fla. 1986). The ballot must, however, give the voter fair notice of the decision he or she must make. Askew, 421 So. 2d at 155. The purpose of section 101.161 is to ensure that voters are advised of the amendment‘s true meaning. Advisory Op. to Att‘y Gen. re Indep. Nonpartisan Comm‘n to Apportion Legislative & Cong. Dists. which Replaces Apportionment by Legislature, 926 So. 2d 1218, 1228 (Fla. 2006). This Court has stressed that a proposed amendment ―must stand on its own merits and not be disguised as something else.‖ Askew, 421 So. 2d at 156. ―A ballot title and summary cannot either ‗fly under false colors‘ or ‗hide the ball‘ as to the amendment‘s true effect.‖ Armstrong, 773 So. 2d at 16.
A court may declare a proposed constitutional amendment invalid only if the record shows that the proposal is clearly and conclusively defective; the standard of review in such cases is de novo. Armstrong, 773 So. 2d at 11. In assessing the ballot title and summary for compliance with section 101.161(1), the reviewing
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court should ask two questions, first, whether the ballot title and summary ―fairly inform the voter of the chief purpose of the amendment,‖ and second, ―whether the language of the title and summary, as written, misleads the public.‖ Florida Dep‘t of State v. Slough, 992 So. 2d 142, 147 (Fla. 2008). However, the Court does not consider the substantive merit of the proposed amendment. Id. The title and summary must also be accurate and informative. See Advisory Opinion to the Attorney Gen. re Term Limits Pledge, 718 So. 2d 798, 803 (Fla. 1998). These requirements make certain that the ―electorate is advised of the true meaning, and ramifications, of an amendment.‖ Advisory Opinion to the Attorney Gen. re Tax Limitation, 644 So. 2d 486, 490 (Fla. 1994) (quoting Askew, 421 So. 2d at 156). A proposed amendment must be removed from the ballot when the title and summary do not accurately describe the scope of the text of the amendment, because it has failed in its purpose. See Term Limits Pledge, 718 So. 2d at 804. Finally, this Court has held that the ballot title and summary must be read together in determining whether the ballot information properly informs the voters. See Advisory Opinion to the Atty. Gen. re Voluntary Universal Pre-Kindergarten Educ., 824 So. 2d 161, 166 (Fla. 2002). This Court will presume that the average voter has a certain amount of common understanding and knowledge. See Advisory Op. to Att‘y Gen. re Protect People from the Health Hazards of Second-Hand Smoke, 814 So. 2d 415 (Fla. 2002).
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Whether the Ballot Title and Summary for Amendment 3 Complies With the Requirements of Section 101.161(1)
Here, we find that the ballot title and summary for Amendment 3 are neither accurate nor informative. If adopted, Amendment 3 would, in relevant part, provide a temporary additional homestead exemption for a single property for a period not to exceed five years in an amount equal to twenty-five percent of the just value of the property during the first year and reduced by at least twenty percent each subsequent year beginning January 1, 2011, for persons who purchase a qualifying property on or after January 1, 2010, who have not owned a ―principal residence‖ for the preceding eight years and, if married, whose spouses have not owned a ―principal residence‖ for the preceding eight years. However, if a voter read the ballot title and summary alone, it would appear that Amendment 3, if adopted, would, in relevant part, provide a temporary additional homestead exemption for a period not to exceed five years in an amount equal to twenty-five percent of the just value of a ―first-time homestead‖ during the first year and reduced by at least twenty percent each subsequent year for persons who have not owned a ―principal residence‖ for the preceding eight years. Because of the omissions in the ballot title and summary, a voter would not be clearly informed who qualifies for the proposed exemption; that a person‘s spouse could exempt him or her from qualifying for the additional homestead exemption; that the
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measure would be effective beginning January 1, 2011, for homes purchased on or after January 1, 2010; and that the additional exemption is available for only a single property. The measure is on the November 2010 general election ballot. Homestead exemptions are available on January 1 of any tax year for eligible homes purchased on or after January 1 of the preceding year. See art. VII, § 4(d), Fla. Const.; Zingale v. Powell, 885 So. 2d 277 (Fla. 2004). However, because the effective date of the measure is excluded from the ballot title and summary, the omission is misleading. Voters have no reasonable way to ascertain which ―new homestead owners‖ qualify for the proposed exemption unlike in each of the previous amendments relating to homestead exemptions, where the effective date was published on the ballot. See, e.g., H. J. Res. 353, Reg. Sess. (Fla. 2006) (Art. XII, § 26, Fla. Const.); S. J. Res. 2D, Spec. Sess. ―D‖ (Fla. 2007) (Art. XII, § 27, Fla. Const.).
Secondly, the circuit court stated that it is misleading for the ballot title and summary to use both ―principal residence‖ and ―first-time homestead.‖ In context, ―first-time homestead‖ is used in the following sentence: ―Under the exemption, 25 percent of the just value of a first-time homestead, up to $100,000, will be exempt from property taxes.‖ In other words, the term is used only to define the value of the exemption. However, when both the title and summary are read in context,
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―new homestead owners‖ could mean ―persons who have not owned a principal residence during the preceding 8 years,‖ and those who have never previously claimed a homestead exemption. This language is ambiguous. As in Advisory Opinion to the Attorney General re Right of Citizens to Choose Health Care Providers, 705 So. 2d 563 (Fla. 1998), the discrepancy in the language is misleading. Id. at 566 (finding material and misleading a ballot summary that asserted that ―citizens‖ would have the right to choose, while the amendment itself referred to ―every natural person‖). Additionally, there is a material omission from the ballot title and summary that is misleading to the voter that was not raised by the parties. Because we review the proposed amendment de novo, we may also consider whether any portion of the title and summary are misleading. Notably, the ballot title and summary fail to note that the additional exemption is not available to a person whose spouse has owned a principal residence in the preceding eight years. This omission clouds the eligibility requirements for the additional homestead exemption in a material way. Because this exclusion is omitted from the ballot title and summary, voters may be misled into believing they qualify for the additional exemption when they do not, or conversely believe they do not qualify when they do.
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For the foregoing reasons, we affirm the order of the Second Circuit enjoining Secretary Roberts from placing Amendment 3 on the November 2010 general election ballot. It is so ordered. PARIENTE, LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur. POLSTON, J., dissents with an opinion, in which CANADY, C.J., concurs. NO MOTION FOR REHEARING WILL BE ALLOWED. POLSTON, J., dissenting. The ballot title and summary give the voters fair notice of the proposed amendment to article VII, Finance and Taxation, which is a relatively complex subject matter in our Florida Constitution. Although the title and summary do not explain every detail within the proposed amendment, I do not consider the differences sufficiently material to keep the people of Florida from voting on the proposed amendment. There is no ―hiding the ball‖ or ―flying under false colors.‖ Accordingly, I dissent. The title and summary state: PROPERTY TAX LIMIT FOR NONHOMESTEAD PROPERTY; ADDITIONAL HOMESTEAD EXEMPTION FOR NEW HOMESTEAD OWNERS.—The State Constitution generally limits the maximum annual increase in the assessed value of nonhomestead property to 10 percent annually. This proposed amendment reduces the maximum annual increase in the assessed values of those properties to 5 percent annually.
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This amendment also requires the Legislature to provide an additional homestead exemption for persons who have not owned a principal residence during the preceding 8 years. Under the exemption, 25 percent of the just value of a first-time homestead, up to $100,000, will be exempt from property taxes. The amount of the additional exemption will decrease in each succeeding year for 5 years by the greater of 20 percent of the initial additional exemption or the difference between the just value and the assessed value of the property. The additional exemption will not be available in the 6th and subsequent years.
The most reasonable reading of the additional homestead exemption provision is that it will apply to new owners who purchase after the effective date of the amendment. Although the amendment adds those purchasing on or after January 1, 2010, I do not believe this is a material difference. Further, when both the title and summary are read in context, ―new homestead owners‖ could only mean ―persons who have not owned a principal residence during the preceding 8 years.‖ And because I believe that not referencing spouses in the summary is relatively minor, I believe fair notice has been provided to the voting public. See Advisory Op. to the Att‘y Gen. re Protect People from the Health Hazards of Second-Hand Smoke by Prohibiting Workplace Smoking, 814 So. 2d 415, 419 (Fla. 2002) (explaining that the word limit placed on summaries does not lend itself to explaining all of a proposed amendment‘s details and concluding that ―an exhaustive explanation of the interpretation and future possible effects of the amendment [is] not required‖) (quoting Advisory Op. to the Att‘y Gen. re
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Amendment to Bar Gov‘t from Treating People Differently Based on Race in Pub. Educ., 778 So. 2d 888, 899 (Fla. 2000)). Therefore, I respectfully dissent. CANADY, C.J., concurs. Certified Judgments of Trial Courts in and for Leon County – John C. Cooper, Judge, Case No. 2010-CA-002114 – An Appeal from the District Court of Appeal, First District, Case No. 1D10-3935 Ronald A. Lathan, Jr., Deputy Solicitor General, Russell S. Kent, Special Counsel for Litigation, and Ashley E. Davis, Assistant Attorney General, C.B. Upton, General Counsel, Florida Department of State, Tallahassee, Florida, for Appellants Barry Scott Richard of Greenberg Traurig, P.A., Tallahassee, Florida for Appellees Victoria L. Weber and David L. Powell of Hopping, Green and Sams, Tallahassee, Florida, on behalf of the Florida Realtors, as Amicus Curiae

IN HAEC VERBA: Florida Supreme Court's Decision Today to Exclude Amendment 3 (Homestead Exemption) From Ballot For Being Deceptive

Supreme Court of Florida
____________
No. SC10-1508
____________
DAWN K. ROBERTS, etc.,
Appellant,
vs.
BRIAN K. DOYLE, et al.,
Appellees.
[August 31, 2010]
PER CURIAM.
Secretary of State Dawn K. Roberts appealed a judgment of the Second Circuit Court to the First District Court of Appeal, which certified to this Court that the judgment is of great public importance and requires immediate resolution by this Court. We have jurisdiction. See art. V, § 3(b)(5), Fla. Const. Because we agree with the trial court‘s determination that the ballot title and summary for Amendment 3 are clearly and conclusively defective, we affirm.
On July 23, 2010, the trial court ordered that Amendment 3 be removed from the November 2010 general election ballot, finding that ―the ballot title and summary . . . fail to fairly inform the voter, in clear and unambiguous language, of
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the chief purpose of the amendment.‖ Specifically, the court found the ballot title and summary for Amendment 3 ―misleading in two material respects, both involving the additional homestead exemption, a chief aspect of the amendment.‖ First, the court found that ―[n]either the title nor the summary provide notice that the additional exemption is only available for properties purchased on or after January 1, 2010.‖ Second, the court found that the language ―new homestead owners‖ in the title, coupled with ―first-time homestead‖ in the summary, convey the message that to be eligible for the additional homestead exemption, the owner must have never before declared the property homestead. The court further found it misleading that the summary limits the exemption to persons not having owned a ―principal residence‖ during the preceding eight years because Florida law does not define ―principal residence‖ as the equivalent of ―homestead‖ for tax purposes.
For the reasons expressed in detail below, we agree with the court that the ballot title and summary are confusing to the average voter. The lack of an effective date renders it impossible for a voter to know which homeowners would qualify for the exemption. Further, the ballot title and summary fail to mention that a married person could fail to qualify for the exemption because his or her spouse previously owned a residence. Finally, we agree that ―[a] voter reading the title and summary could easily conclude that in order to be eligible for the additional homestead, a property owner would have to meet two conditions: have
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not owned a principal residence during the preceding eight years and have never previously declared the property homestead.‖ General Principles Regarding Proposed Constitutional Amendments The Florida Constitution gives the Legislature authority to propose amendments for submission to the electorate. See art. XI, § 1, Fla. Const. Article XI, section 1, provides that the Legislature may propose an amendment to the Florida Constitution by a ―joint resolution agreed to by three-fifths of the membership of each house of the legislature.‖ Then the proposed constitutional amendment must be ―submitted to the electors at the next general election.‖ Art. XI, § 5(a), Fla. Const. ―Implicit in this provision is the requirement that the proposed amendment be accurately represented on the ballot; otherwise, voter approval would be a nullity.‖ Armstrong v. Harris, 773 So. 2d 7, 12 (Fla. 2000). The accuracy requirement in article XI, section 5, functions as a kind of ―truth in packaging‖ law for the ballot. Id. at 13. The accuracy requirement applies to all proposed constitutional amendments, including those proposed by the Legislature. Id. at 16.
The Court has recognized that ―[a]lthough the constitution does not expressly authorize judicial review of amendments proposed by the Legislature, this Court long ago explained that the courts are the proper forum in which to
- 4 -
litigate the validity of such amendments.‖ Armstrong, 773 So. 2d at 13-14. Specifically, the Court has stated: Under our system of constitutional government regulated by law, a determination of whether an amendment to the Constitution has been validly proposed and agreed to by the Legislature depends upon the fact of substantial compliance or noncompliance with the mandatory provisions of the existing Constitution as to how such amendments shall be proposed and agreed to, and such determination is necessarily required to be in a judicial forum where the Constitution provides no other means of authoritatively determining such questions. Armstrong, 773 So. 2d at 14 (quoting Crawford v. Gilchrist, 59 So. 963, 966 (Fla. 1912)). Although this Court traditionally has accorded a measure of deference to constitutional amendments proposed by the Legislature, that deference ―is not boundless, for the constitution imposes strict minimum requirements that apply across-the-board to all constitutional amendments, including those arising in the Legislature.‖ Armstrong, 773 So. 2d at 14. The accuracy requirement in article XI, section 5, imposes a strict minimum standard for ballot clarity. This requirement plays no favorites—it applies across-the-board to all constitutional amendments, including those proposed by the Legislature. The purpose of this requirement is above reproach—it is to ensure that each voter will cast a ballot based on the full truth. To function effectively—and to remain viable—a constitutional democracy must require no less. Armstrong, 773 So. 2d at 21.
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Section 101.161(1), Florida Statutes (2009), is a ―codification of the accuracy requirement implicit in article XI, section 5 of the Florida Constitution.‖ Advisory Op. to Att'y Gen. re Referenda Required for Adoption & Amendment Local Gov't Comprehensive Land Use Plans, 902 So. 2d 763, 770 (Fla. 2005). Section 101.161(1) provides: Whenever a constitutional amendment or other public measure is submitted to the vote of the people, the substance of such amendment or other public measure shall be printed in clear and unambiguous language on the ballot after the list of candidates, followed by the word ―yes‖ and also by the word ―no,‖ and shall be styled in such a manner that a ―yes‖ vote will indicate approval of the proposal and a ―no‖ vote will indicate rejection. The wording of the substance of the amendment or other public measure and the ballot title to appear on the ballot shall be embodied in the joint resolution, constitutional revision commission proposal, constitutional convention proposal, taxation and budget reform commission proposal, or enabling resolution or ordinance. Except for amendments and ballot language proposed by joint resolution, the substance of the amendment or other public measure shall be an explanatory statement, not exceeding 75 words in length, of the chief purpose of the measure. In addition, for every amendment proposed by initiative, the ballot shall include, following the ballot summary, a separate financial impact statement concerning the measure prepared by the Financial Impact Estimating Conference in accordance with s. 100.371(5). The ballot title shall consist of a caption, not exceeding 15 words in length, by which the measure is commonly referred to or spoken of.
§ 101.161(1), Fla. Stat. (2009). Thus, section 101.161(1) provides that the substance of a proposed constitutional amendment must be printed on the ballot in ―clear and unambiguous language.‖ This Court has explained ―that
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the ballot [must] be fair and advise the voter sufficiently to enable him intelligently to cast his ballot.‖ Askew v. Firestone, 421 So. 2d 151, 155 (Fla. 1982) (quoting Hill v. Milander, 72 So. 2d 796, 798 (Fla. 1954)). While the ballot title and summary must state in clear and unambiguous language the chief purpose of the measure, they need not explain every detail or ramification of the proposed amendment. Carroll v. Firestone, 497 So. 2d 1204, 1206 (Fla. 1986). The ballot must, however, give the voter fair notice of the decision he or she must make. Askew, 421 So. 2d at 155. The purpose of section 101.161 is to ensure that voters are advised of the amendment‘s true meaning. Advisory Op. to Att‘y Gen. re Indep. Nonpartisan Comm‘n to Apportion Legislative & Cong. Dists. which Replaces Apportionment by Legislature, 926 So. 2d 1218, 1228 (Fla. 2006). This Court has stressed that a proposed amendment ―must stand on its own merits and not be disguised as something else.‖ Askew, 421 So. 2d at 156. ―A ballot title and summary cannot either ‗fly under false colors‘ or ‗hide the ball‘ as to the amendment‘s true effect.‖ Armstrong, 773 So. 2d at 16.
A court may declare a proposed constitutional amendment invalid only if the record shows that the proposal is clearly and conclusively defective; the standard of review in such cases is de novo. Armstrong, 773 So. 2d at 11. In assessing the ballot title and summary for compliance with section 101.161(1), the reviewing
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court should ask two questions, first, whether the ballot title and summary ―fairly inform the voter of the chief purpose of the amendment,‖ and second, ―whether the language of the title and summary, as written, misleads the public.‖ Florida Dep‘t of State v. Slough, 992 So. 2d 142, 147 (Fla. 2008). However, the Court does not consider the substantive merit of the proposed amendment. Id. The title and summary must also be accurate and informative. See Advisory Opinion to the Attorney Gen. re Term Limits Pledge, 718 So. 2d 798, 803 (Fla. 1998). These requirements make certain that the ―electorate is advised of the true meaning, and ramifications, of an amendment.‖ Advisory Opinion to the Attorney Gen. re Tax Limitation, 644 So. 2d 486, 490 (Fla. 1994) (quoting Askew, 421 So. 2d at 156). A proposed amendment must be removed from the ballot when the title and summary do not accurately describe the scope of the text of the amendment, because it has failed in its purpose. See Term Limits Pledge, 718 So. 2d at 804. Finally, this Court has held that the ballot title and summary must be read together in determining whether the ballot information properly informs the voters. See Advisory Opinion to the Atty. Gen. re Voluntary Universal Pre-Kindergarten Educ., 824 So. 2d 161, 166 (Fla. 2002). This Court will presume that the average voter has a certain amount of common understanding and knowledge. See Advisory Op. to Att‘y Gen. re Protect People from the Health Hazards of Second-Hand Smoke, 814 So. 2d 415 (Fla. 2002).
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Whether the Ballot Title and Summary for Amendment 3 Complies With the Requirements of Section 101.161(1)
Here, we find that the ballot title and summary for Amendment 3 are neither accurate nor informative. If adopted, Amendment 3 would, in relevant part, provide a temporary additional homestead exemption for a single property for a period not to exceed five years in an amount equal to twenty-five percent of the just value of the property during the first year and reduced by at least twenty percent each subsequent year beginning January 1, 2011, for persons who purchase a qualifying property on or after January 1, 2010, who have not owned a ―principal residence‖ for the preceding eight years and, if married, whose spouses have not owned a ―principal residence‖ for the preceding eight years. However, if a voter read the ballot title and summary alone, it would appear that Amendment 3, if adopted, would, in relevant part, provide a temporary additional homestead exemption for a period not to exceed five years in an amount equal to twenty-five percent of the just value of a ―first-time homestead‖ during the first year and reduced by at least twenty percent each subsequent year for persons who have not owned a ―principal residence‖ for the preceding eight years. Because of the omissions in the ballot title and summary, a voter would not be clearly informed who qualifies for the proposed exemption; that a person‘s spouse could exempt him or her from qualifying for the additional homestead exemption; that the
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measure would be effective beginning January 1, 2011, for homes purchased on or after January 1, 2010; and that the additional exemption is available for only a single property. The measure is on the November 2010 general election ballot. Homestead exemptions are available on January 1 of any tax year for eligible homes purchased on or after January 1 of the preceding year. See art. VII, § 4(d), Fla. Const.; Zingale v. Powell, 885 So. 2d 277 (Fla. 2004). However, because the effective date of the measure is excluded from the ballot title and summary, the omission is misleading. Voters have no reasonable way to ascertain which ―new homestead owners‖ qualify for the proposed exemption unlike in each of the previous amendments relating to homestead exemptions, where the effective date was published on the ballot. See, e.g., H. J. Res. 353, Reg. Sess. (Fla. 2006) (Art. XII, § 26, Fla. Const.); S. J. Res. 2D, Spec. Sess. ―D‖ (Fla. 2007) (Art. XII, § 27, Fla. Const.).
Secondly, the circuit court stated that it is misleading for the ballot title and summary to use both ―principal residence‖ and ―first-time homestead.‖ In context, ―first-time homestead‖ is used in the following sentence: ―Under the exemption, 25 percent of the just value of a first-time homestead, up to $100,000, will be exempt from property taxes.‖ In other words, the term is used only to define the value of the exemption. However, when both the title and summary are read in context,
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―new homestead owners‖ could mean ―persons who have not owned a principal residence during the preceding 8 years,‖ and those who have never previously claimed a homestead exemption. This language is ambiguous. As in Advisory Opinion to the Attorney General re Right of Citizens to Choose Health Care Providers, 705 So. 2d 563 (Fla. 1998), the discrepancy in the language is misleading. Id. at 566 (finding material and misleading a ballot summary that asserted that ―citizens‖ would have the right to choose, while the amendment itself referred to ―every natural person‖). Additionally, there is a material omission from the ballot title and summary that is misleading to the voter that was not raised by the parties. Because we review the proposed amendment de novo, we may also consider whether any portion of the title and summary are misleading. Notably, the ballot title and summary fail to note that the additional exemption is not available to a person whose spouse has owned a principal residence in the preceding eight years. This omission clouds the eligibility requirements for the additional homestead exemption in a material way. Because this exclusion is omitted from the ballot title and summary, voters may be misled into believing they qualify for the additional exemption when they do not, or conversely believe they do not qualify when they do.
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For the foregoing reasons, we affirm the order of the Second Circuit enjoining Secretary Roberts from placing Amendment 3 on the November 2010 general election ballot. It is so ordered. PARIENTE, LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur. POLSTON, J., dissents with an opinion, in which CANADY, C.J., concurs. NO MOTION FOR REHEARING WILL BE ALLOWED. POLSTON, J., dissenting. The ballot title and summary give the voters fair notice of the proposed amendment to article VII, Finance and Taxation, which is a relatively complex subject matter in our Florida Constitution. Although the title and summary do not explain every detail within the proposed amendment, I do not consider the differences sufficiently material to keep the people of Florida from voting on the proposed amendment. There is no ―hiding the ball‖ or ―flying under false colors.‖ Accordingly, I dissent. The title and summary state: PROPERTY TAX LIMIT FOR NONHOMESTEAD PROPERTY; ADDITIONAL HOMESTEAD EXEMPTION FOR NEW HOMESTEAD OWNERS.—The State Constitution generally limits the maximum annual increase in the assessed value of nonhomestead property to 10 percent annually. This proposed amendment reduces the maximum annual increase in the assessed values of those properties to 5 percent annually.
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This amendment also requires the Legislature to provide an additional homestead exemption for persons who have not owned a principal residence during the preceding 8 years. Under the exemption, 25 percent of the just value of a first-time homestead, up to $100,000, will be exempt from property taxes. The amount of the additional exemption will decrease in each succeeding year for 5 years by the greater of 20 percent of the initial additional exemption or the difference between the just value and the assessed value of the property. The additional exemption will not be available in the 6th and subsequent years.
The most reasonable reading of the additional homestead exemption provision is that it will apply to new owners who purchase after the effective date of the amendment. Although the amendment adds those purchasing on or after January 1, 2010, I do not believe this is a material difference. Further, when both the title and summary are read in context, ―new homestead owners‖ could only mean ―persons who have not owned a principal residence during the preceding 8 years.‖ And because I believe that not referencing spouses in the summary is relatively minor, I believe fair notice has been provided to the voting public. See Advisory Op. to the Att‘y Gen. re Protect People from the Health Hazards of Second-Hand Smoke by Prohibiting Workplace Smoking, 814 So. 2d 415, 419 (Fla. 2002) (explaining that the word limit placed on summaries does not lend itself to explaining all of a proposed amendment‘s details and concluding that ―an exhaustive explanation of the interpretation and future possible effects of the amendment [is] not required‖) (quoting Advisory Op. to the Att‘y Gen. re
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Amendment to Bar Gov‘t from Treating People Differently Based on Race in Pub. Educ., 778 So. 2d 888, 899 (Fla. 2000)). Therefore, I respectfully dissent. CANADY, C.J., concurs. Certified Judgments of Trial Courts in and for Leon County – John C. Cooper, Judge, Case No. 2010-CA-002114 – An Appeal from the District Court of Appeal, First District, Case No. 1D10-3935 Ronald A. Lathan, Jr., Deputy Solicitor General, Russell S. Kent, Special Counsel for Litigation, and Ashley E. Davis, Assistant Attorney General, C.B. Upton, General Counsel, Florida Department of State, Tallahassee, Florida, for Appellants Barry Scott Richard of Greenberg Traurig, P.A., Tallahassee, Florida for Appellees Victoria L. Weber and David L. Powell of Hopping, Green and Sams, Tallahassee, Florida, on behalf of the Florida Realtors, as Amicus Curiae

IN HAEC VERBA: Florida Supreme Court's Decision Today Taking Deceptive Amendment 7 Off the Ballot

Supreme Court of Florida
____________
No. SC10-1375
____________
FLORIDA DEPARTMENT OF STATE, etc., et al.,
Appellants,
vs.
FLORIDA STATE CONFERENCE OF NAACP BRANCHES, et al.,
Appellees.
[August 31, 2010]
PER CURIAM.
The Florida Department of State, Dawn K. Roberts in her official capacity as the Secretary of State, the Florida Senate, and the Florida House of Representatives (―Roberts and the Legislature‖), appealed to the First District Court of Appeal from a July 12, 2010, judgment of the circuit court striking a legislatively proposed constitutional amendment from the November 2010 general election ballot. The First District certified to this Court that the judgment is of great public importance and that the appeal requires immediate resolution by this Court under our jurisdiction set forth in article V, section 3(b)(5), of the Florida Constitution. We agreed and granted expedited review to decide the question of great public
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importance—whether proposed Amendment 7, amending article III of the Florida Constitution, meets the requirements of Florida law for inclusion on the November 2010 ballot. As further explained below, we affirm the judgment of the circuit court striking proposed Amendment 7 from the ballot because the ballot language fails to inform the voter of the chief purpose and effect the amendment will have on existing, mandatory constitutional provisions in article III. 1. FACTS On May 18, 2010, the Florida Legislature filed with the Florida Secretary of State a joint legislative resolution, Fla. H.J. Res. 7231 (2010) (HJR 7231), proposing an amendment to article III of the Florida Constitution. The amendment, designated Amendment 7 for the November 2010 general election ballot, would add section 20 to article III of the constitution as follows: SECTION 20. Standards for establishing legislative and congressional district boundaries.—In establishing congressional and legislative district boundaries or plans, the state shall apply federal requirements and balance and implement the standards in this constitution. The state shall take into consideration the ability of racial and language minorities to participate in the political process and elect candidates of their choice, and communities of common interest other than political parties may be respected and promoted, both without subordination to any other provision of this article. Districts and plans are valid if the balancing and implementation of standards is rationally related to the standards contained in this constitution and is consistent with federal law.
Section 101.161, Florida Statutes (2009), provides that whenever a constitutional amendment is proposed for submission to a vote of the people, the substance of the
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amendment shall be printed in clear and unambiguous language on the ballot.1 See § 101.161(1), Fla. Stat. (2009). We have held that ―[t]he purpose of section 101.161(1) is to assure that the electorate is advised of the true meaning, and ramifications, of an amendment.‖ Askew v. Firestone, 421 So. 2d 151, 156 (Fla. 1982). In HJR 7231, the Legislature adopted the following statement, which essentially mirrors the language contained in proposed Amendment 7, and resolved that it be placed on the ballot as follows: BE IT FURTHER RESOLVED that the following statement be placed on the ballot: CONSTITUTIONAL AMENDMENT ARTICLE III, SECTION 20 STANDARDS FOR LEGISLATURE TO FOLLOW IN LEGISLATIVE AND CONGRESSIONAL REDISTRICTING.—In establishing congressional and legislative district boundaries or plans, the state shall apply federal requirements and balance and implement the standards in the State Constitution. The state shall take into consideration the ability of racial and language minorities to participate in the political process and elect candidates of their choice, and communities of common interest other than political parties may be respected and promoted, both without subordination to any other provision of article III of the State Constitution. Districts and plans are valid if the balancing and implementation of standards is rationally related to the standards contained in the State Constitution and is consistent with federal law.
On May 21, 2010, a complaint for declaratory and injunctive relief was filed in the circuit court seeking to prevent placement of proposed Amendment 7 on the
1. Section 101.161(1) also provides that for amendments and ballot language not proposed by joint legislative resolution, the explanatory statement included on the ballot shall not exceed 75 words in length.
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November ballot. The suit was filed against the Florida Department of State and Secretary of State Dawn K. Roberts by plaintiffs Florida State Conference of NAACP Branches; Adora Obi Nweze; The League of Women Voters of Florida, Inc.; Deirdre Macnab; Robert Milligan; Nathaniel P. Reed; Democracia Ahora; and Jorge Mursuli. After the complaint was filed, Governor Charlie Crist was allowed to intervene as amicus curiae in support of plaintiffs, and the Florida House of Representatives and the Florida Senate were allowed to intervene as defendants in the circuit court.
The complaint alleged, inter alia, that the ballot title and summary for Amendment 7 fail to inform the voters that the amendment (1) would limit the mandatory application of constitutional standards and allow the Legislature to subordinate existing standards in article III to permissive and vague standards in the amendment; (2) would allow the Legislature to consider but not implement specific protections for minority voters contained in proposed constitutional Amendments 5 and 6, also slated for the November ballot;2 (3) would allow the Legislature to ―balance‖ standards in such a way as to create districts favoring or disfavoring incumbents; and (4) is intended to require validation of any district or
2. See Advisory Op. to Att‘y Gen. re Standards for Establishing Legislative District Boundaries, 2 So. 3d 175, 191 (Fla. 2009) (approving ballot title and summary); Advisory Op. to Att‘y Gen. re Standards for Establishing Legislative District Boundaries (FIS), 24 So. 3d 1198, 1202 (Fla. 2009) (holding that the financial impact statements comply with statute).
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plan that is related to nonmandatory standards in Amendment 7. The plaintiffs also alleged that the ballot title is misleading in that it purports to provide ―standards‖ for redistricting while actually eliminating them. The plaintiffs filed a motion for summary judgment seeking a judgment that the proposed amendment fails to advise voters of its chief purpose and true effect. Defendants Roberts and the Legislature filed cross motions for summary judgment. The parties agreed that there existed no disputed issues of material fact, and a final hearing was held on July 8, 2010. On July 12, 2010, the circuit court entered its order granting the plaintiffs‘ motion for summary final judgment and denying the defendants‘ motions for summary judgment. The circuit court‘s order found that the ballot language does not meet the requirements of section 101.161(1) in that it does not fairly advise the voters of the ramifications of the amendment. As a result, the circuit court enjoined the Department of State from placing Amendment 7 on the November 2010 ballot. In so ruling, the trial judge made the following pertinent findings: Apart from the number of districts to be drawn, the Florida Constitution currently contains only one requirement binding on the legislature when they meet every ten years to draw districts. That one mandatory requirement is that each district be contiguous. Amendment 7, if it were to pass, would make that one mandatory requirement aspirational only and would subordinate contiguity to the other aspirational goals or ―standards‖ contained in Amendment 7. . . . .
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To be clear, there is nothing unlawful or improper about what the legislative proposal seeks to do. The wisdom of a proposed amendment is not a matter of concern for this Court. But to be legally entitled to a place on the ballot, the summary and title must be fair and must advise the voter sufficiently to enable the voter to intelligently vote for or against the amendment. . . . Requiring that all districts be contiguous is a valuable right afforded to all citizens of Florida. A citizen cannot, and should not, be asked to give up that right without being fully informed and making an intelligent decision to do so. Amendment 7, if passed, would allow this or any future legislature, if it chose to do so, to gerrymander districts guided by no mandatory requirements or standards and subject to no effective accountability so long as its decisions were rationally related to, and balanced with, the aspirational goals set out in Amendment 7 and the subordinate goal of contiguity.
Thus, the primary basis on which the circuit court invalidated the ballot language was that it failed to inform the voters that article III of the Florida Constitution currently contains a mandatory contiguity requirement which, if Amendment 7 is adopted, could be subordinated to the other considerations set forth in proposed Amendment 7.3
3. Article III, section 16(a), of the Florida Constitution, titled ―Senatorial and Representative Districts,‖ requires that in the second year following each decennial census, the Legislature shall apportion the state in accordance with the constitutions of the State and the United States ―into not less than thirty nor more than forty consecutively numbered senatorial districts of either contiguous, overlapping or identical territory, and into not less than eighty nor more than one hundred twenty consecutively numbered representative districts of either contiguous, overlapping or identical territory.‖
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II. ANALYSIS The standard of review of the validity of a proposed constitutional amendment is de novo. Armstrong v. Harris, 773 So. 2d 7, 11 (Fla. 2000). We are ever mindful that ―[t]he Court must act with extreme care, caution, and restraint before it removes a constitutional amendment from the vote of the people.‖ Askew v. Firestone, 421 So. 2d 151, 156 (Fla. 1982). ―A court may declare a proposed constitutional amendment invalid only if the record shows that the proposal is clearly and conclusively defective . . . .‖ Armstrong, 773 So. 2d at 11 (citing Askew, 421 So. 2d at 154).
A. Requirement that Ballot Language Inform Voters of Legal
Effect and Ramifications of a Proposed Amendment
In reviewing the validity of ballot language submitted to the voters for a proposed constitutional amendment, we do not consider or review the substantive merits or the wisdom of the amendment. See Standards For Establishing Legislative District Boundaries, 2 So. 3d at 184; Fla. Dep‘t of State v. Slough, 992 So. 2d 142, 147 (Fla. 2008); In re Advisory Op. to Att‘y Gen. re Med. Liab. Claimant‘s Comp. Amendment, 880 So. 2d 675, 677 (Fla. 2004); Askew, 421 So. 2d at 155. Our sole task is to determine whether the ballot language sets forth the substance of the amendment in a manner that satisfies the requirements of section 101.161, Florida Statutes (2009). Section 101.161(1) expressly requires that ―[w]henever a constitutional amendment or other public measure is submitted to
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the vote of the people, the substance of such amendment or other public measure shall be printed in clear and unambiguous language on the ballot.‖ § 101.161(1), Fla. Stat. ―Section 101.161(1) is a codification of the accuracy requirement implicit in article XI, section 5 of the Florida Constitution.‖ Advisory Op. to Att‘y Gen. re Referenda Required for Adoption & Amendment of Local Government Comprehensive Land Use Plan, 902 So. 2d 763, 770 (Fla. 2005).
To conform to section 101.161(1), the ballot language ―must state ‗the chief purpose‘ of the proposed amendment. In evaluating an amendment‘s chief purpose, a court must look not to subjective criteria espoused by the amendment‘s sponsor but to objective criteria inherent in the amendment itself, such as the amendment‘s main effect.‖ Armstrong, 773 So. 2d at 18 (footnote omitted). In this analysis, we consider two questions: ―(1) whether the ballot title and summary, in clear and unambiguous language, fairly inform the voter of the chief purpose of the amendment; and (2) whether the language of the title and summary, as written, misleads the public.‖ Standards for Establishing Legislative District Boundaries, 2 So. 3d at 184 (quoting Advisory Op. to Att‘y Gen. re Prohibiting State Spending for Experimentation that Involves the Destruction of a Live Human Embryo, 959 So. 2d 210, 213-14 (Fla. 2007)). This evaluation also includes consideration of the amendment‘s ―true meaning, and ramifications.‖ Armstrong, 773 So. 2d at 16 (quoting Askew, 421 So. 2d at 156). ―In practice, the accuracy requirement in
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article XI, section 5, functions as a kind of ‗truth in packaging‘ law for the ballot.‖ Armstrong, 773 So. 2d at 13. The proposed change in the constitution must ―stand on its own merits and not be disguised as something else.‖ Askew, 421 So. 2d at 156. ―Reduced to colloquial terms, a ballot title and summary cannot ‗fly under false colors‘ or ‗hide the ball‘ with regard to the true effect of an amendment.‖ Slough 992 So. 2d at 147; see also Armstrong, 773 So. 2d at 16. Moreover, we have consistently adhered to the principle ―that lawmakers who are asked to consider constitutional changes, and the people who are asked to approve them, must be able to comprehend the sweep of each proposal from a fair notification in the proposition itself that it is neither less nor more extensive than it appears to be.‖ Smathers v. Smith, 338 So. 2d 825, 829 (Fla. 1976). It is by these basic and longstanding principles that we must measure the ballot language presented to the voter for Amendment 7.
We do not ignore the fact that HJR 7231, proposing Amendment 7, was the product of a joint resolution passed by a three-fifths vote of the Legislature. While we traditionally accord a measure of deference to the Legislature, ―[t]his deference . . . is not boundless, for the constitution imposes strict minimum requirements that apply across-the-board to all constitutional amendments, including those arising in the Legislature.‖ Armstrong, 773 So. 2d at 14. We also recognize that section 101.161(1), which places strict requirements on ballot language presented for any
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constitutional amendment or other public measure, is also a legislative enactment entitled to this Court‘s deference.4 B. The Ballot Language for Proposed Amendment 7 With these principles in mind, we turn to the question before the Court—whether the ballot language proposed for Amendment 7 comports with the requirements of section 101.161, the Florida Constitution, and our case law governing placement of proposed constitutional amendments on the ballot. The ballot language for proposed Amendment 7 states in pertinent part that in redistricting, ―[t]he state shall take into consideration the ability of racial and language minorities to participate in the political process and elect candidates of their choice, and communities of common interest other than political parties may be respected and promoted, both without subordination to any other provision of article III of the State Constitution.‖ See HJR 7231 (emphasis added).
4. Contrary to the suggestion in the dissent that we have overlooked important precedent on constitutional construction, we are not unmindful of the rule of construction that requires a court to interpret an ambiguous constitutional provision, if possible, in such a manner as to harmonize it with existing constitutional provisions. However, as the authority cited in the dissent demonstrates, this rule of construction applies to existing constitutional provisions, not to proposed amendments. Our duty under section 101.161(1), Florida Statutes, and article XI, section 5, of the Florida Constitution is to assure that the chief purpose and effect of proposed amendments be presented to the voter in clear and unambiguous language.
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In this case, the circuit court struck Amendment 7 from the ballot because the court concluded the ballot language did not inform the voters that the amendment would allow the existing mandatory constitutional requirement in article III, section 16(a), requiring that districts be contiguous to be subordinated to the discretionary standards contained in Amendment 7. We agree with this finding. Under the text of Amendment 7, if the discretionary considerations in Amendment 7 are not to be subordinated to any other provisions of article III, then it must follow that other provisions of article III may be subordinated to the discretionary considerations in the balancing process set forth in Amendment 7. This clearly alters the nature of the contiguity requirement currently contained in article III, section 16(a), of the constitution. Unfortunately, neither the text of the amendment nor the explanatory statement proposed by the Legislature makes this fact clear. Nowhere does the ballot language inform the voter that there is currently a mandatory contiguity requirement in article III, and nowhere does the language inform the voter that the contiguity requirement could be diluted by Amendment 7. In Armstrong we invalidated a constitutional amendment because the ballot language failed to inform the voters that the provision would alter an existing provision in the Florida Constitution. We stated:
In the present case, as explained above, the main effect of the amendment is simple, clear-cut, and beyond dispute: The amendment
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will nullify the Cruel or Unusual Punishment Clause. This effect far outstrips the stated purpose (i.e., to ―preserve‖ the death penalty), for the amendment will nullify a longstanding constitutional provision that applies to all criminal punishments, not just the death penalty. Nowhere in the summary, however, is this effect mentioned—or even hinted at. The main effect of the amendment is not stated anywhere on the ballot. (The voter is not even told on the ballot that the word ―or‖ in the Cruel or Unusual Punishment Clause will be changed to ―and‖—a significant change by itself.) Armstrong, 773 So. 2d at 18 (footnote omitted). In the present case, Amendment 7 would allow the Legislature to nullify the currently mandatory nature of the contiguity requirement, placing it on par with the other discretionary considerations in the redistricting process—considerations that are subject to discretionary balancing by the Legislature. This is a matter that should have been clearly and unambiguously stated in the ballot language. Failing this clear explanation, the voters will be unaware of the valuable right—the right to have districts composed of contiguous territory—which may be lost if the amendment is adopted. For all these reasons, we agree with the well-reasoned judgment of the circuit court and affirm the judgment striking proposed Amendment 7 from the ballot because the ballot language fails to inform the voter of the chief purpose of Amendment 7 and the effect it will have on the existing, mandatory constitutional provisions in article III.
Although the circuit court did not reach the question of whether the ballot title is invalid as being misleading, we also find that the ballot title is misleading
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and precludes placement of Amendment 7 on the ballot. The ballot title states ―Standards for Legislature to Follow in Legislative and Congressional Redistricting.‖ While purporting to create and impose standards upon the Legislature in redistricting, the amendment actually eliminates actual standards and replaces them with discretionary considerations. Thus, we conclude that the title is misleading as to the true purpose and effect of the amendment. III. CONCLUSION Based upon the provisions of section 101.161(1), Florida Statutes, article XI, section 5, of the Florida Constitution, and our precedent, we hold that the ballot language setting forth the substance of Amendment 7 does not inform the voter of the true purpose and effect of the amendment on existing constitutional provisions and, further, is misleading. Accordingly, the judgment of the circuit court is affirmed and Amendment 7 may not be placed on the general election ballot for November 2010. It is so ordered. PARIENTE, LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur. PARIENTE, J., concurs with an opinion, in which PERRY, J., concurs. CANADY, C.J., dissents with an opinion, in which POLSTON, J., concurs. NO MOTION FOR REHEARING WILL BE ALLOWED.
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PARIENTE, J., concurring. While this Court is reluctant to interfere with the people‘s right to vote on a proposed constitutional amendment, the Court has an obligation to strike a ballot proposal that does not clearly and unambiguously inform the voter of the impact of the amendment. It should hardly be a controversial proposition that voters must be able to cast an intelligent and informed vote on the proposed constitutional amendment and understand whether the proposed amendment adds to their existing rights, alters existing rights, or dilutes existing rights provided to them by their constitution. We must be always mindful that the ―Constitution of Florida is a document of limitation by which the people of the state have restricted the forces of government in the exercise of dominion and power over their property, their rights and their lives.‖ Smathers v. Smith, 338 So. 2d 825, 827 (Fla. 1976). Although the Florida Constitution sets forth the structure of state government, its essential purpose is to protect the rights of the people and to restrict the exercise of power by the government.
Of course, the people of this State also have a right to amend the constitution, and the voters have the right to decide to adopt a proposed amendment that provides the Legislature with greater authority, alters existing rights already guaranteed in the constitution, or restricts the effect of other
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proposed amendments. The unifying principle for all proposed constitutional changes is that the voters ―must be able to comprehend the sweep of each proposal from a fair notification in the proposition itself that is neither less nor more extensive than it appears to be.‖ Smathers, 338 So. 2d at 829. The ―accuracy requirement in Article XI, section 5, functions as a kind of ‗truth in packaging‘ law for the ballot‖ and applies ―across-the-board to all constitutional amendments.‖ Armstrong v. Harris, 773 So. 2d 7, 13-14 (Fla. 2000). The Legislature asserts that in proposing this amendment, it was motivated by its interest in providing our citizens with greater protection when it comes to redistricting. If in fact the Legislature‘s intent was to provide the citizens with additional rights concerning redistricting, that purpose is not clearly and unambiguously conveyed. The proposed amendment appears to actually have the opposite effect. In this case, because the ballot summary fails to explain its chief purpose and the title misleadingly sets forth that the amendment is creating ―Standards for the Legislature to Follow,‖ we are obligated to strike the initiative from the ballot. PERRY, J., concurs. CANADY, C.J., dissenting.
The basis for the majority‘s decision to preclude the people of Florida from voting on proposed amendment 7 is the assertion that the amendment is misleading
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because it fails to disclose that it would nullify the contiguity requirement currently in the Florida Constitution. But nothing about amendment 7 is misleading. The amendment, by its own plain terms, does not nullify the contiguity requirement but mandates the implementation of that requirement. I therefore dissent from the majority‘s ruling that the text of amendment 7 and its ballot title are defective and from the decision to remove the amendment from the ballot. Article III, section 16(a) of the Florida Constitution provides that the Legislature ―shall apportion the state . . . into not less than thirty nor more than forty consecutively numbered senatorial districts of either contiguous, overlapping or identical territory, and into not less than eighty nor more than one hundred twenty consecutively numbered representative districts of either contiguous, overlapping or identical territory.‖ Contrary to the majority‘s assertion, nothing in amendment 7 would nullify, dilute, or alter this provision of the Florida Constitution.
Amendment 7 provides that in establishing district boundaries or plans, ―the state shall . . . balance and implement the standards in this constitution.‖ H.J. Res. 7231, 2010 Leg. (Fla. 2010) (emphasis added). Amendment 7 further provides that ―[t]he state shall take into consideration the ability of racial and language minorities to participate in the political process and elect candidates of their choice, and communities of common interest other than political parties may be respected
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and promoted, both without subordination to any other provision of this article.‖ Id. (emphasis added). Finally, amendment 7 also states that ―[d]istricts and plans are valid if the balancing and implementation of standards is rationally related to the standards contained in this constitution.‖ Id. (emphasis added). The majority‘s reading of the amendment fails to give full effect to these provisions. That reading is based on the inference that the references in the text of amendment 7 to ―balance‖ and ―balancing‖ and the ―without subordination to‖ clause vest the Legislature with a wholly discretionary power to ignore the contiguity requirement of article III, section 16(a). But the inference relied on by the majority is rendered wholly untenable by the express requirement in the amendment that the State ―balance and implement the standards in this constitution‖ and by the express provision that the ―balancing and implementation of standards‖ must be ―rationally related‖ to the constitutional standards. The majority‘s interpretation of amendment 7 effectively reads the words ―and implement‖ together with ―and implementation‖ out of the text of the amendment.
―Implement‖ means ―to carry out: accomplish, fulfill.‖ Webster‘s Third New Int‘l Dictionary of the English Language, Unabridged 1134 (1993). More particularly, ―implement‖ means ―to give practical effect to and ensure of actual fulfillment by concrete measures.‖ Id. It is impossible to implement a requirement
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or standard if the requirement or standard is disregarded. A standard which must be implemented has not been nullified. Contrary to the majority‘s suggestion, the standard at issue—contiguity—is not a standard that is subject to dilution. This Court has defined ―contiguous‖ as ―being in actual contact: touching along a boundary or at a point.‖ A district lacks contiguity ―when a part is isolated from the rest by the territory of another district‖ or when the lands ―mutually touch only at a common corner or right angle.‖ In re Constitutionality of House Joint Resolution 1987, 817 So. 2d 819, 827-28 (Fla. 2002) (citation omitted) (quoting In re Senate Joint Resolution 2G, 597 So. 2d 276, 279 (Fla. 1992)). A district either meets the contiguity requirement or fails to meet that requirement. Contiguity is thus a determinate requirement and not a vague standard that may be applied in varying degrees. In this respect, contiguity is like the constitutional requirement that there be between thirty and forty senatorial districts and between eighty and 120 representative districts.
The direction to ―balance and implement‖ standards does not—as the majority contends—grant discretion to not implement the contiguity standard. If the Legislature adopted a plan with districts that did not meet the contiguity requirement, the Legislature would have failed to ―balance and implement the standards of the constitution‖ and the ―balancing and implementation of standards‖ would not be ―rationally related‖ to the standards of the constitution. Under
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amendment 7, the Legislature would have no more discretion to adopt a plan with districts not satisfying the contiguity requirement than it would have to adopt a plan with fifty senatorial districts and 150 representative districts. In short, the majority‘s reading of amendment 7 cannot be reconciled with the plain meaning of ―implement.‖ Nor does the ―without subordination to‖ clause justify the majority‘s conclusion that amendment 7 would nullify, dilute, or alter the contiguity requirement. Based on that clause, the majority reasons that the other requirements of the constitution ―may be subordinated to the discretionary considerations in the balancing process set forth in Amendment 7.‖ Majority op. at 11. The majority equates ―without subordination to‖ with ―superior to‖ or ―without regard to.‖ Id. In the full context of amendment 7, this interpretation is not plausible. The clause must be understood in conjunction with the provision that all of the constitutional standards must be implemented. H.J. Res. 7231, 2010 Leg. (Fla. 2010). In context, ―without subordination to‖ can only mean ―not inferior to.‖ It cannot be understood to suggest that the Legislature can fail to implement the other constitutional standards of article III.
The majority‘s interpretation is not rescued by the assertion that the phrase ―balance and implement the standards,‖ the phrase ―balancing and implementation of standards,‖ and the ―without subordination to‖ clause leave open the possibility
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that not every standard must necessarily be implemented. The assertion springs from an inappropriate focus on the ―without subordination to‖ clause and the references to ―balance‖ and ―balancing‖ in isolation from the full context of amendment 7. This assertion thus attempts to tease an ambiguity out of a text that unequivocally directs that ―the state shall . . . balance and implement the standards in this constitution.‖
But even if disbelief could be suspended and the ambiguity could be found, the majority‘s position would nonetheless founder on the rule that ―[a] construction that nullifies a specific clause will not be given to a constitution unless absolutely required by the context.‖ Gray v. Bryant, 125 So. 2d 846, 858 (Fla. 1960). Since amendment 7 does not expressly repeal the contiguity requirement now in the constitution, any ambiguity in amendment 7 should be resolved to harmonize the amendment with the existing contiguity provision. See Jackson v. Consol. Gov‘t of Jacksonville, 225 So. 2d 497, 500-01 (Fla. 1969). The majority‘s analysis simply fails to take into account this cardinal rule of constitutional interpretation.5
5. The majority‘s justification for this failure is not cogent. The majority asserts that the rule of construction does not apply to proposed constitutional amendments. This misses the point that the question here is the effect the proposed amendment, if adopted, would have on the existing constitutional provision. To decide if the proposal is defective because it fails to disclose to the voters that it would alter, nullify, or dilute the existing contiguity provision, the interplay of the proposal and the existing provision must be determined. The rule of constitutional construction obviously is relevant to that determination.
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The chief purpose of amendment 7 is clearly articulated and presented to the voters in the ballot summary, which sets forth verbatim the operative text of the amendment. The text of the amendment speaks for itself, and it conceals nothing from the voters. There is nothing about the ballot title or the ballot summary that is inaccurate or misleading. Instead, the inaccuracy lies in the majority‘s unwarranted interpretation of amendment 7, an interpretation which cannot be reconciled with the amendment‘s plain meaning and which violates fundamental principles of constitutional interpretation. The people are thus denied the right to vote on amendment 7 based on an interpretation of the amendment which cannot withstand scrutiny. The Constitution of Florida belongs to the people of Florida. Under our system of democratic governance, the people have the fundamental right to amend the constitution, which includes the right to consider constitutional amendments proposed to them by their representatives in the Legislature. The decision to remove amendment 7 from the ballot unjustifiably denies the people of Florida the opportunity to vote on this amendment to the constitution properly proposed to them by their elected representatives. The majority‘s decision unduly interferes with a process that is fundamental to our constitutional system of democratic governance. POLSTON, J., concurs.
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Certified Judgments of Trial Courts in and for Leon County – James Oliver Shelfer, Judge, Case No. 2010-CA-001803 – An Appeal from the District Court of Appeal, First District, Case No. 1D10-3676 R. Dean Cannon of Dean Cannon, P.A., Winter Park, Florida, Scott D. Makar, Solicitor General, Jonathan A. Glogau, Office of the Attorney General, Tallahassee, Florida, Peter M. Dunbar, Cynthia S. Tunnicliff, and Brian A. Newman of Pennington, Moore, Wilkinson, Bell and Dunbar, Tallahassee, Florida, C. B. Upton, General Counsel, Florida Department of State, Tallahassee, Florida, and George N. Meros, Jr., Allen Winsor and Andy Bardos of GrayRobinson, P.A., Tallahassee, Florida, and Miguel De Grandy, P.A., Coral Gables, Florida, for Appellants, Ronald G. Meyer, Jennifer S. Blohm, and Lynn C. Hearn of Meyer, Brooks, Demma and Blohm, P.A., Tallahassee, Florida, Mark Herron and Robert J. Telfer, III of Messer, Caparello and Self, P.A., Tallahassee, Florida, for Appellees, Erik M. Figlio, J. Andrew Atkinson, and Simonne Lawrence, Executive Office of The Governor, Tallahassee, Florida, on behalf of Governor Charlie Crist, as Amicus Curiae