Florida Supreme Court Archives - Florida Politics

‘Bundled’ amendments prevent ballot fatigue, state says

Florida’s solicitor general Monday asked the Florida Supreme Court to allow three proposed constitutional amendments on the November ballot.

Solicitor General Amit Agarwal, who filed an initial brief, appealed a lower court’s decision blocking the ballot measures. Agarwal reports to Attorney General Pam Bondi. 

Circuit Judge Karen Gievers had found that the three proposals – including a measure that would ban offshore oil drilling and ban vaping in workplaces – improperly “bundled” unrelated issues.

Why not, Agarwal suggested, since the Framers did the same thing.

“Our constitutional history is replete with examples of situations in which voters have been asked to vote up or down on bundled provisions addressing distinct rights and issues—including the ratification of the Constitution and the First Amendment,” he said.

A challenge by retired Supreme Court Justice Harry Lee Anstead, and fellow plaintiff Robert Barnas, a former state elections commissioner, argued that such bundling would violate the First Amendment rights of voters, who could have conflicting views of issues in single ballot proposals.

But Anstead offers no “manageable standard for determining how ‘unrelated’ two provisions must be to trigger the First Amendment right he asks this Court to recognize for the first time in the history of American jurisprudence,” Agarwal wrote.

The 2017-18 Constitution Revision Commission (CRC) this spring approved placing the three measures on the ballot. All proposed changes to the state’s governing document require a minimum of 60 percent approval for passage.

“Even if the First Amendment included the right (they) assert, the CRC had a rational basis for bundling some of the amendments for inclusion on the 2018 General Election ballot,” he said.

“(L)ong ballots often discourage citizens from voting at all, and if the CRC had listed all the proposed amendments separately, there would appear (25) questions on the ballot this fall, rather than (15).

“In other words, the CRC acted reasonably and with the proper intention of minimizing ballot fatigue when it decided to bundle proposed constitutional amendments.”

Along with the proposal on drilling and vaping, Gievers struck from the ballot a measure that deals with governance of the state-college system and death benefits for survivors of first responders and military members.

Also, she struck a measure that would remove constitutional language that prohibits “aliens ineligible for citizenship” from owning property and would revise language to make clear the repeal of criminal statutes does not affect the prosecution of crimes committed before the repeal.

The Supreme Court already has ruled on legal challenges to four other proposed amendments placed on the ballot by the Constitution Revision Commission. Justices upheld three of the proposals, including a proposed ban on dog racing, though they blocked a controversial education measure.

Anstead’s answer brief is due next, “no later than (noon on) Friday, Sept. 21,” and the state’s reply brief is expected “no later than (noon on) Monday, Sept. 24.”

__

Senior Editor Jim Rosica contributed to this post. Background provided by The News Service of Florida, reprinted with permission.

Supreme Court accepts ‘bundling’ challenge to constitutional amendments

The Florida Supreme Court on Wednesday unanimously agreed to consider a challenge on whether three proposed constitutional amendments should be blocked from the November ballot.

The court, however, postponed a decision “as to whether the case will be submitted … with or without oral argument,” its order said.

Attorney General Pam Bondi appealed after Circuit Judge Karen Gievers found that the three proposals – including a measure that would ban offshore oil drilling and ban vaping in workplaces – improperly “bundled” unrelated issues.

In her ruling, Gievers agreed with retired Supreme Court Justice Harry Lee Anstead and another plaintiff that such bundling would violate the First Amendment rights of voters, who could have conflicting views of issues in single ballot proposals.

The 2017-18 Constitution Revision Commission this spring approved placing the three measures on the ballot.

Along with the proposal on drilling and vaping, Gievers struck from the ballot a measure that deals with governance of the state-college system and death benefits for survivors of first responders and military members.

Also, she struck a measure that would remove constitutional language that prohibits “aliens ineligible for citizenship” from owning property and would revise language to make clear the repeal of criminal statutes does not affect the prosecution of crimes committed before the repeal.

The Supreme Court already has ruled on legal challenges to four other proposed amendments placed on the ballot by the Constitution Revision Commission. Justices upheld three of the proposals, including a proposed ban on dog racing, though they blocked a controversial education measure.

After a Leon County circuit judge ruled last week that three proposed constitutional amendments should be blocked from the November ballot, the legal dispute has moved quickly to the Florida Supreme Court.

The 1st District Court of Appeal had sent the case to the Supreme Court, bypassing the usual steps in the appellate process. With ballots starting to go out to voters this month, that court said “the issues pending in this case are of great public importance requiring immediate resolution by the Supreme Court.”

The high court asked for the state’s initial brief “no later than 3 p.m., Monday, Sept. 17,” with Anstead’s answer brief “no later than (noon on) Friday, Sept. 21,” and the state’s reply brief “no later than (noon on) Monday, Sept. 24.”

__

Senior Editor Jim Rosica contributed to this post. Background provided by The News Service of Florida, reprinted with permission.

Florida Supreme Court

Apply within: Panel starts process to replace Supreme Court justices

The Florida Supreme Court Judicial Nominating Commission on Wednesday announced it would start accepting applications to fill three upcoming vacancies.

Justices Barbara Pariente, R. Fred Lewis, and Peggy A. Quince face mandatory retirement on the same day that term-limited Republican Gov. Rick Scott will leave office.

Under the state constitution, judges and justices face mandatory retirement at age 70. In Florida, judicial vacancies are filled by appointment by the Governor, from a list of applicants vetted and submitted by judicial nominating panels.

“Based on the Supreme Court’s current composition, one seat must be filled by a qualified applicant who resides in the Third Appellate District (based in Miami); the other two seats are at-large,” a press release said.

The next justices will likely determine the ideological balance of the state’s highest court: Pariente, Lewis, and Quince are regarded as the court’s liberal-leaning contingent; Chief Justice Charles Canady and Justices Ricky Polston and Alan Lawson are the conservatives. Justice Jorge Labarga is often a swing vote.

On Tuesday evening, Scott said he would agree to confer with the next governor-elect on the three justices. Tallahassee Mayor Andrew Gillum is the Democratic nominee; Ponte Vedra Beach congressman Ron DeSantis is the GOP nominee.

Quince was the last justice to be appointed that way in 1998, and was the consensus candidate of then Gov. Lawton Chiles, a Democrat, and Gov.-elect Jeb Bush, a Republican.

A Gillum spokesman has all but spurned the idea, saying that “in our understanding of the constitution, the next Governor will appoint the next three Supreme Court justices.”

Scott, now running for U.S. Senate, says he will announce the new justices on Jan. 7, his last day in office, which coincides with their retirement date.

Scott’s insistence on replacing the three spurred a legal challenge earlier this year by the League of Women Voters of Florida and Common Cause. The progressive organization’s implied concern was that Scott would pack the court with more conservatives.

In a 6-1 decision, the Supreme Court said in December that it couldn’t step into the controversy because the Governor hadn’t taken any action yet.

The lone dissenter? Lewis, who said Scott’s plan to make the appointments on his way out the door was “blatantly unconstitutional.”

The application form is here. The deadline to apply is 5 p.m. Oct. 8.

__

Capital correspondent Michael Moline and Senior Editor Jim Rosica contributed to this post.

Rick Scott says he’ll consult his successor on Supreme Court vacancies

Gov. Rick Scott moved Tuesday to defuse litigation over his authority to replace the Florida Supreme Court’s liberal wing by offering to confer with his successor on candidates to fill the seats of Fred LewisPeggy Quince and Barbara Pariente.

Scott had said he planned to announce their replacements on Jan. 7, his last day in office, which coincides with their retirement date.

Instead, he took a page from the late Democratic Gov. Lawton Chiles, who reached a similar accord with incoming Republican Jeb Bush in 1998.

Scott emphasized that precedent in a press release announcing his move.

“The Governor’s expectation is that he and the governor-elect – like Gov. Chiles and then Gov.-elect Bush – will agree on the selection of three justices who will serve with distinction,” the release says.

“Gov. Scott will not appoint any justice to the Florida Supreme Court until the governor-elect has had an opportunity to interview the nominees and review their references and qualifications.”

In a historical irony, Quince is the last justice appointed through such consultations.

The League of Women Voters of Florida and Common Cause filed suit in June, asking the courts to block Scott appointments. Their unstated concern was that Scott, a Naples Republican, would pack the court with more conservatives.

In a 6-1 decision, the Supreme Court said in December that it couldn’t step into the controversy because the Governor hadn’t taken any action yet.

Chief Justice Jorge Labarga, usually a swing vote, joined with the court’s conservatives: Justices Charles CanadyRicky Polston and Alan Lawson.

Pariente and Quince concurred, but Lewis dissented and called Scott’s proposed actions “blatantly unconstitutional.”

The League and Common Cause had argued that the Governor can’t replace the justices because he’ll be out of office earlier on the same day they retire, and their final judicial terms last till midnight.

Scott didn’t mention the litigation in his press release, but did say the retiring justices were “constitutionally ineligible to serve beyond the expiration of their current terms.”

The nominating and appointment process can take as long as four months, including background screening and reviews of The Florida Bar’s disciplinary records, Scott said.

“Beginning the process to fill these vacancies right now follows the practice of previous governors. Florida’s Supreme Court is so important to Floridians, and we will work together to select the most qualified justices to faithfully serve our state,” he added.

“With more than six decades of combined service on the court, these three justices have made their mark on the state’s jurisprudence. To minimize or avoid any period of vacancy on the Supreme Court, the nominating process must begin well in advance of these vacancies.”

In an email, the campaign communications director for Andrew Gillum, the Democratic nominee for Governor, disagreed.

“In our understanding of the Constitution, the next Governor will appoint the next three Supreme Court justices,” Geoff Burgan said.

Charter schools amendment stricken from November ballot

The Florida Supreme Court on Friday deep-sixed a contentious proposed constitutional amendment dealing with schools from the November ballot, agreeing with a lower court that the proposal’s intentions toward charter schools were poorly worded.

As a result of the Supreme Court’s 4-3 decision Friday, Amendment 8, which covers several education matters, will not be presented to voters on the Nov. 6 statewide ballot.

Justice Jorge Labarga was the swing vote, siding with the court’s liberal triumvirate of Barbara Pariente, R. Fred Lewis, and Peggy A. Quince. The conservative faction of Chief Justice Charles Canady and Justices Ricky Polston and Alan Lawson dissented.

“An opinion setting forth our reasons for this decision will issue at a later date,” a one-paragraph order said. “Rehearing will not be entertained.”

The proposed amendment was bundled together earlier this year by the Constitution Revision Commission (CRC). The problematic matter had to do with the creation of a new category of public schools not controlled by local school boards: Essentially state-supervised charter schools.

In addition, Amendment 8 also would have set term limits on school board members statewide, and would have required civics education in all schools.

The League of Women Voters of Florida went to court to challenge this amendment’s language, alleging that it hid the amendment’s true purpose.

“We’re really pleased that the Florida Supreme Court has agreed with the League on this,” League President Patricia Brigham said Friday afternoon. “It really shows the backers of this on the CRC went to great lengths to hide the ball, because they realized that Floridians would never knowingly forfeit their right their local control over local public schools.”

Backers, represented by the campaign committee 8isGreat.org, decried the ruling.

“Voters deserved to have a say in whether to allow the monopoly over schools to continue, but activist judges have decided otherwise,” Erika Donalds, a Collier County School Board member and the main sponsor of Amendment 8 on the CRC, said in a statement released by 8isGreat.org Friday afternoon.

The league had challenged the amendment in Tallahassee circuit court, contending that the bundled language not only hid the intention of creating state-monitored charter schools outside of local school districts’ control, but bundled that with the far more popular idea, school board member term limits, to get it past voters.

Critics charged the amendment was “sugar-coated.”

Earlier drafts of the CRC proposal specifically talked about state-supervised charter schools. However, the final version of the revision offered as a constitutional amendment didn’t use the words “charter schools” at all.

Instead the language would have rewritten the duties of the local school boards to open the door to schools not “established” by the school board, and therefore outside of the school board’s purview.

On Aug. 20, Circuit Judge John Cooper agreed with the league’s objections and issued a summary judgment to jettison the amendment from the ballot. He wrote that “the ballot summary … clearly and conclusively fails to adequately inform the voter of the chief purposes and effects of the revision, and is affirmatively misleading.”

Amendment 10 OK’d for ballot by Supreme Court

The state’s Supreme Court on Friday unanimously upheld a lower court ruling approving Amendment 10, which would overhaul state and local governments by requiring certain offices now appointed to be elected.

That means the constitutional change remains on the Nov. 6 ballot, though it still must be approved by no less than 60 percent of voters to take effect.

The ballot measure, created by the 2017-18 Constitution Revision Commission, had been opposed by charter counties, such as Miami-Dade and Volusia.

The measure would make the five local constitutional offices — sheriff, tax collector, supervisor of elections, clerk of the court and property appraiser — mandatory and require elections for the offices in all 67 counties. It would also prohibit charter counties from abolishing or modifying those offices.

Charter counties have argued local voters should have the power to decide how constitutional offices are structured and whether they should be elected positions. “Charters are formal written documents that confer powers, duties, or privileges on the county,” according to the Florida Association of Counties.

Circuit Judge James Shelfer of Tallahassee had rejected those arguments, prompting Volusia, Miami-Dade and Broward counties to file notices of appeal.

The court’s 14-page decision, among other things, said the “summary tells voters that the amendment would ‘ensure’ election of constitutional officers in all counties, and provides that county charters may not allow for their selection by an alternative method.

“It is therefore unnecessary to explain the obvious result — that voters would not be able to eliminate election of the officers by charter or special law.”

In a statement, the head of the Florida Sheriffs Association called it a “sound ruling … for the voters of Florida.”

“Every county deserves the right to have an elected and independent sheriff who works directly for the people,” said Columbia County Sheriff Mark Hunter, president of the association. “Sheriffs of Florida are pleased to know that this November, Floridians can guarantee their right to vote for their sheriff is protected in our Constitution with Amendment 10.”

The amendment faced another challenge that it and five other CRC measures were wrongfully “bundled.” Circuit Judge Karen Gievers heard argument in that case this week but said she would not issue an opinion on Amendment 10 and two others because of the Supreme Court’s review.

__

Background provided by The News Service of Florida, republished with permission.

Off to the races: Supreme Court clears dog racing-ban for ballot

The Florida Supreme Court on Friday ordered a proposed constitutional amendment that would ban betting on live greyhound racing back on the ballot, reversing a lower-court judge.

Now, if approved by at least 60 percent of voters in November, the measure could sound the death knell of the state’s 87-year-old greyhound industry. In Florida, live dog racing is still conducted at 11 tracks.

The court, in a 6-1 decision, overturned a previous order by Circuit Judge Karen Gievers, who ruled that Amendment 13’s ballot title and summary would mislead voters, calling it “outright ‘trickeration.’ ” Justice Peggy A. Quince dissented.

The majority made three main findings:

— The amendment’s language saying “humane treatment of animals would become a fundamental value of the people of Florida” …“does not have any independent legal significance” and ‘its omission from the ballot summary does not render the ballot language clearly and conclusively defective.”

— The ballot text itself does not “mislead voters about the effects Amendment 13 would have on other forms of gaming” – that is, none – because “a reasonable voter would understand” that other kinds of gambling like cards and slots “will continue without material change.”

“If Amendment 13 is adopted, the only activities which will change in a material way are dog racing in Florida and wagering thereon, which will cease,” the opinion says.

— The ballot title, “Ends Dog Racing,” won’t “mislead voters to believe all wagering on dog racing would be prohibited, even though in-state betting on out-of-state (simulcast) racing would be allowed to continue” because “a reasonable voter would not interpret” it that way.

Jack Cory, spokesman and lobbyist for the Florida Greyhound Association, which filed the legal challenge, said his group was “disappointed in the decision today, but it is now on to the next race, ‘NO ON ALL in November!’ ”

The racing ban is one of eight amendments OK’d by the 2017-18 Constitution Revision Commission (CRC); 13 amendments in all have been set for the ballot. Amendment 13 was the first to be struck down by a trial court judge.

In a statement, Cory said the proposed constitutional change was made from “false and misleading information,” mentioning what he called the creation of “freestanding casinos” — a point the majority refuted, however. “This is the reason that you should not put issues like this into the Florida Constitution.”

Quince said in a short dissent that “there is no reasonable way for a voter to know whether, by voting yes for this amendment, they are also voting to either suspend or expand” other gambling.

“… Amendment 13 would waive an important condition of licensure for operators of card rooms and slot machines whose licenses arose out of their pari-mutuel dog racing permits,” she wrote.

Pari-mutuels in Florida usually are required to continue running live dog or horse races to have slots and card games that make those facilities more money. A move afoot called “decoupling,” removing the live racing requirement, has failed in the Legislature in recent years.

The Protect Dogs-Yes on 13 campaign, which is promoting passage of the amendment, said in a statement the challenge “was a desperate attempt to prevent voters from having a voice on whether greyhound confinement and deaths should continue.”

The campaign has bipartisan support from Republicans — Attorney General Pam Bondi and  Congressman Matt Gaetz — and Democrats — state Rep. Carlos Guillermo Smith and House District 47 candidate Anna Eskamani, to name a few.

“This is a major victory for Florida’s greyhounds and as an animal lover, I am absolutely elated by the court’s ruling,” Eskamani said in a text message. “I have no doubt that Floridians will overwhelmingly support Amendment 13 and end the cruel industry of greyhound racing in our state.”

The challenge “was filed because greyhound breeders know that when Amendment 13 appears on the ballot, Floridians will vote ‘yes’ for the dogs,” the campaign added. “Florida has a proud tradition of leading on animal welfare, and we are confident Amendment 13 will pass in November.”

Victims’ rights amendment will appear on ballot, justices rule

Justice Jorge Labraga joined the Florida Supreme Court’s conservative wing in ruling that the Constitution Revision Commission’s Amendment 6 including a crime victims ‘bill of rights’ may appear on the November ballot.

“We hereby reverse the circuit court’s judgment and vacate the injunction prohibiting the Secretary of State from action to place the Constitutional Revision Commission’s Revision 1, designated as Amendment 6 and titled ‘Rights of Crime Victims; Judges,’ on the ballot,” the court said in a 4-3 decision.

“No motions for rehearing will be permitted,” it added.

The justices did not explain their reasoning regarding the amendment, sometimes referred to as Marsy’s Law, but said a full opinion would follow.

In addition to expanding victims’ rights, the amendment would raise judges’ retirement age from 70 to 75, and limit the deference courts give to government agencies’ interpretations of laws and regulations.

In addition to Labarga, Chief Justice Charles Canady and Justices Alan Lawson and Ricky Polston voted to OK the amendment for voter consideration. Justices Fred Lewis, Peggy Quince, and Barbara Pariente dissented.

The decision came one day after the justices heard oral arguments in the case.

Circuit Judge Karen Gievers, sitting in Tallahassee, on Aug. 27 had ordered the amendment stripped from the ballot, ruling that the title and summary to appear before the voters did not “fully, fairly, and accurately” describe the amendment; was “misleading;” and did not meet “truth in packaging” requirements for submission to the voters.

In a statement, ACLU of Florida Executive Director Howard Simon said he was “disappointed” that the court did not reject Amendment 6 for being “misleading.” He and others complained that the amendment would expand victims’ rights at the expense of criminal defendants, and that the ballot language did not make that clear.

“The rights of victims of crime are already protected by Florida law, though Amendment 6’s appearance on the ballot suggests otherwise,” he said.

“The amendment would upset the balance between the rights of victims and people accused of crimes by deleting part of our constitution that balances the rights of everyone involved in a criminal case,” Simon said.

The state had argued such concerns were misplaced.

“Voters have the common sense to understand that criminal and juvenile procedure are the subject of statutes and procedural rules, and the state Constitution will supersede any conflicting statute or rule,” the government’s brief argued.

Tallahassee litigators Mark Herron, challenging the amendment, and Barry Richard, arguing for Marsy’s Law for Florida, were involved in the case along with lawyers from the Office of the Attorney General.

Jack Cory to state gambling regulators: Let the kennel tours go on

The face of the Florida Greyhound Association is asking the head of the state agency regulating gambling to let his people go.

Go behind the scenes at dog tracks, that is.

Tallahassee lobbying legend Jack Cory, who’s advocated for the greyhound industry for decades, sent a request Friday for an “emergency rule” to Jonathan Zachem, secretary of the Department of Business and Professional Regulation.

The department oversees dog racing and other gambling through its Division of Pari-mutuel Wagering.

Earlier this week, the agency had warned racing greyhound owners and others that public tours of kennels at Florida greyhound tracks may violate state regulations.

That’s because last month, the National Greyhound Association said it would offer tours of “three Florida greyhound tracks and their on-site kennels.” The free two-hour guided tours were “designed to promote transparency and educate the public about the care of greyhounds at the track, as well as stewardship of the breed,” according to a press release.

The Florida Supreme Court could issue a ruling as soon as Friday on whether general election voters will get to see a constitutional amendment aimed at ending live greyhound racing.

Circuit Judge Karen Gievers already struck the measure after a challenge from the Florida Greyhound Association, calling its ballot title and summary “outright ‘trickeration.’ 

Spokeswoman Suellen Wilkins has explained that “certain areas of pari-mutuel facilities are restricted access,” specifically “the backside where racing animals are kept.”

But Cory told Zachem he could change state regulations to temporarily allow visitors with passes to see kennels “under direct supervision at all times.”

“The men and women of the Florida Greyhound Association believe in ‘government in the sunshine’ and welcome the citizens of the state to visit the greyhounds, at any reasonable time, to see how well (they) are treated, under the inspection of your staff,” Cory wrote in an email.

“With this knowledge, the voters can decide whether or not the state needs this change to the constitution,” he added.

Because Cory asked for the emergency rule, “this matter is now under legal review (and), as such, DBPR cannot comment,” said Rose Hebert, another department spokeswoman.

The Protect Dogs-Yes on 13 campaign, which is promoting passage of Amendment 13, has called the planned tours “staged political photo opportunities.”

The campaign said the tour registration form included “screening questions to weed out animal advocates,” and that waiver language “gave the (greyhound association) the right to use the likeness of participants in political ads.”

Derby Lane, located in St. Petersburg, and the Palm Beach Kennel Club, located in West Palm Beach, had been selected to be the first two tracks to open their doors.

The amendment, slotted for the ballot by the 2017-18 Constitution Revision Commission, would need at least 60 percent approval to be added to the state constitution, like other proposed changes to the state’s governing document.

__

Featured photo courtesy of Van Abernethy.

Sign on dotted line: Appeals court upholds assignment of benefits ruling

A state appeals court has upheld insurance policy language barring policyholders from signing assignment of benefits agreements without the approval of co-insureds, including financial institutions holding mortgages on the property.

The ruling Wednesday, written by Judge Alan Forst for a unanimous three-judge panel of the 4th District Court of Appeal, contradicts a finding by the 5th District reached in December.

Both rulings cited a more-than-100-year-old Florida Supreme Court precedent striking down policy language giving insurers a veto over assignments of benefits.

“We begin with the premise that, generally, absent ‘some great prejudice to the dominant public interest’ or specific pronouncement by the Florida Legislature, courts strive to uphold the parties’ freedom of contract,” Forst wrote.

“The contract here does not prohibit assignment — it imposes a condition, requiring the approval of all insureds and the mortgagee. We cannot say that this restriction … creates ‘some great prejudice to the dominant public interest.’”

The opinion arose from a lawsuit filed by Restoration 1, a Port St. Lucie contractor, against Ark Royal Insurance Co. for refusing to pay more than $20,000 in repairs to water damage.

John and Lisa Squitieri owned the insurance policy. Lisa signed an assignment of benefits, or AOB, agreement but John did not. Neither did their bank.

In West Florida Grocery Co. v. Teutonia Fire Insurance Co., the Supreme Court in 1917 upheld a “well-settled rule that the provision in a policy relative to the consent of the insurer to the transfer of an interest therein does not apply to an assignment after loss.”

In its own ruling, the 5th DCA cited that precedent plus a Florida Office of Insurance Regulation policy “restricting the ability of policyholders to assign post-loss benefits absent the consent of all insureds, all additional insureds, and all mortgagees named in their policies” — language essentially the same as for Ark Royal.

However, its sister court misread the precedents, the 4th DCA concluded.

“By its plain terms, West Florida Grocery does not stand for the pronouncement that any restriction is per se invalid,” Forst wrote.

“Instead, the Supreme Court addressed and invalidated only a provision requiring the consent of the insurer, with the court concluding that it is ‘superfluous’ who the insurer ultimately pays as the insurer will still have to cover the insured loss,” he continued.

“In the instant case … it is impossible to brand the contested provision as superfluous — as both of the insureds, as well as the mortgagee, have a vested interest that a reputable, legitimate third-party contractor perform repairs on the home.”

Show Buttons
Hide Buttons