Advisory Opinion to the Attorney General Re: Right to Competitive Energy Market for Customers of Investor-Owned Utilities Allowing Energy Choice ( 2020 )

Supreme Court of Florida
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No. SC19-328
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ADVISORY OPINION TO THE ATTORNEY GENERAL RE:
RIGHT TO COMPETITIVE ENERGY MARKET FOR CUSTOMERS OF
INVESTOR-OWNED UTILITIES; ALLOWING ENERGY CHOICE
January 9, 2020
PER CURIAM.
The Attorney General of Florida has requested this Court’s opinion as to the
validity of a citizen initiative petition circulated pursuant to article XI, section 3 of
the Florida Constitution. We have jurisdiction. See art. IV, § 10, art. V,
§ 3(b)(10), Fla. Const. For the reasons expressed below, we conclude that the
proposed initiative, titled “Right to Competitive Energy Market for Customers of
Investor-Owned Utilities; Allowing Energy Choice” (“the Initiative”), should not
be placed on the ballot.
BACKGROUND
On March 1, 2019, the Attorney General petitioned this Court for an opinion
as to the validity of the Initiative, which is sponsored by Citizens for Energy
Choices and was circulated pursuant to article XI, section 3, of the Florida
Constitution. The Attorney General opposes the Initiative, contending the ballot
title and summary fail to adequately inform the voters of “the true meaning and
ramifications of the proposed amendment.” Twenty-five parties filed briefs
opposing the Initiative, either individually or jointly. The Initiative would add the
following new section to article X of the Florida Constitution:
(a) POLICY DECLARATION. It is the policy of the State of Florida
that its wholesale and retail electricity markets be fully competitive so
that electricity customers are afforded meaningful choices among a
wide variety of competing electricity providers.
(b) RIGHTS OF ELECTRICITY CUSTOMERS. Effective upon the
dates and subject to the conditions and exceptions set forth in
subsections (c), (d), and (e), every person or entity that receives
electricity service from an investor-owned electric utility (referred to
in this section as “electricity customers”) has the right to choose their
electricity provider, including, but not limited to, selecting from
multiple providers in competitive wholesale and retail electricity
markets, or by producing electricity themselves or in association with
others, and shall not be forced to purchase electricity from one
provider. Except as specifically provided for below, nothing in this
section shall be construed to limit the right of electricity consumers to
buy, sell, trade, or dispose of electricity.
(c) IMPLEMENTATION. By June 1, 2023, the Legislature shall
adopt complete and comprehensive legislation to implement this
section in a manner fully consistent with its broad purposes and stated
terms, which shall take effect no later than June 1, 2025, and which
shall:
(1) implement language that entitles electricity customers to purchase
competitively priced electricity, including but not limited to
provisions that are designed to (i) limit the activity of investor-owned
electric utilities to the construction, operation, and repair of electrical
transmission and distribution systems, (ii) promote competition in the
generation and retail sale of electricity through various means,
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including the limitation of market power, (iii) protect against
unwarranted service disconnections, unauthorized changes in electric
service, and deceptive or unfair practices, (iv) prohibit any granting of
either monopolies or exclusive franchises for the generation and sale
of electricity, and (v) establish an independent market monitor to
ensure the competitiveness of the wholesale and retail electric
markets.
(2) Upon enactment of any law by the Legislature pursuant to this
section, all statutes, regulations, or orders which conflict with this
section shall be void.
(d) EXCEPTIONS. Nothing in this section shall be construed to
affect the existing rights or duties of electric cooperatives,
municipally-owned electric utilities, or their customers and owners in
any way, except that electric cooperatives and municipally-owned
electric utilities may freely participate in the competitive wholesale
electricity market and may choose, at their discretion, to participate in
the competitive retail electricity market. Nothing in this section shall
be construed to invalidate this State’s public policies on participants in
competitive electricity markets. Nothing in this section shall be
construed to limit or expand the existing authority of this State or any
of its political subdivisions to levy and collect taxes, assessments,
charges, or fees related to electricity service.
(e) EXECUTION. If the Legislature does not adopt complete and
comprehensive legislation to implement this section in a manner fully
consistent with its broad purposes and stated terms by June 1, 2023,
then any Florida citizen shall have standing to seek judicial relief to
compel the Legislature to comply with its constitutional duty to enact
such legislation under this section.
The ballot title for the proposed amendment, which is limited by law to
fifteen words, is stated as “Right to Competitive Energy Market for Customers of
Investor-Owned Utilities; Allowing Energy Choice.” The ballot summary, which
is limited by law to seventy-five words, states:
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Grants customers of investor-owned utilities the right to choose their
electricity provider and to generate and sell electricity. Requires the
Legislature to adopt laws providing for competitive wholesale and
retail markets for electricity generation and supply, and consumer
protections, by June 1, 2025, and repeals inconsistent statutes,
regulations, and orders. Limits investor-owned utilities to
construction, operation, and repair of electrical transmission and
distribution systems. Municipal and cooperative utilities may opt into
competitive markets.
STANDARD OF REVIEW
“When this Court renders an advisory opinion concerning a proposed
constitutional amendment arising through the citizen initiative process, the Court
limits its inquiry to two issues: (1) whether the amendment itself satisfies the
single-subject requirement of article XI, section 3, Florida Constitution; and
(2) whether the ballot title and summary satisfy the clarity requirements of section
101.161, Florida Statutes.” In re Advisory Op. to Att’y Gen. re Use of Marijuana
for Debilitating Med. Conditions, 181 So. 3d 471, 476 (Fla. 2015) (quoting
Advisory Op. to Att’y Gen. re Land & Water Conservation, 123 So. 3d 47, 50 (Fla.
2013)). In addressing these two issues, the Court must not address the merits or
wisdom of the Initiative. Advisory Op. to Att’y Gen. re Treating People Differently
Based on Race in Pub. Educ., 778 So. 2d 888, 891 (Fla. 2000). Further, the Court
has a “duty . . . to uphold the proposal unless it can be shown to be ‘clearly and
conclusively defective.’ ” Advisory Op. to Att’y Gen. re Use of Marijuana for
Certain Med. Conditions, 132 So. 3d 786, 795 (Fla. 2014) (quoting Advisory Op. to
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Att’y Gen. re Fla.’s Amend. to Reduce Class Size, 816 So. 2d 580, 582 (Fla.
2002)). “This Court has traditionally applied a deferential standard of review to
the validity of a citizen initiative petition and ‘has been reluctant to interfere’ with
‘the right of self-determination for all Florida’s citizens’ to formulate ‘their own
organic law.’ ” Id. at 794 (quoting Advisory Op. to Att’y Gen. re Right to
Treatment & Rehab. for Non-Violent Drug Offenses, 818 So. 2d 491, 494 (Fla.
2002)).
ANALYSIS
While the parties have raised a number of issues for this Court’s
consideration, we address only one issue which is dispositive—that the ballot
summary affirmatively misleads voters to believe the Initiative grants a right to sell
electricity. The right to sell issue falls under the clarity requirements of section
101.161, Florida Statutes (2019). Section 101.161(1) requires the ballot summary,
which is limited to seventy-five words, to describe a proposed amendment to the
Florida Constitution “in clear and unambiguous language on the ballot.”
Moreover, the ballot title, limited to fifteen words, “shall consist of a caption, not
exceeding 15 words in length, by which the measure is commonly referred to or
spoken of.” Id. The purpose of these requirements is “to provide fair notice of the
content of the proposed amendment so that the voter will not be misled as to its
purpose, and can cast an intelligent and informed ballot.” Advisory Op. to the Att’y
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Gen. re Voting Restoration Amendment, 215 So. 3d 1202, 1207 (Fla. 2017)
(quoting Advisory Op. to Att’y Gen. re Term Limits Pledge, 718 So. 2d 798, 803
(Fla. 1998)); see also Armstrong v. Harris, 773 So. 2d 7, 12 (Fla. 2000)
(explaining that section 101.161, Florida Statutes, codifies a constitutional
“accuracy requirement”).
“Ballot language may be clearly and conclusively defective either in an
affirmative sense, because it misleads the voters as to the material effects of the
amendment, or in a negative sense by failing to inform the voters of those material
effects.” Dep’t of State v. Florida Greyhound Ass’n, Inc., 253 So. 3d 513, 520
(Fla. 2018). Therefore, “the Court must consider two questions: ‘(1) whether the
ballot title and summary . . . fairly inform the voter of the chief purpose of the
amendment; and (2) whether the language of the title and the summary, as written,
misleads the public.’ ” Fla. Dep’t of State v. Slough, 992 So. 2d 142, 147 (Fla.
2008) (quoting Advisory Op. to Att’y Gen. re Prohib. State Spending, 959 So. 2d
210, 213-14 (Fla. 2007)).
Here, we address only the right to sell issue. The ballot summary tells voters
that the proposed amendment grants a personal right to “sell electricity,” when in
fact the amendment does no such thing. The proposed amendment grants several
rights, such as (1) the right to purchase electricity from a provider of one’s choice,
(2) the right to purchase electricity in competitive wholesale and retail markets,
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and (3) the right to generate electricity oneself or in combination with others.
However, at no point does the Initiative grant a freestanding constitutional right to
sell electricity. Instead, it provides that “nothing in this section shall be construed
to limit the right of electricity consumers to buy, sell, trade, or dispose of
electricity.” (Emphasis added.) The question is not whether a person has the right
to sell electricity if the Initiative is adopted, but whether, as the ballot summary
claims, the Initiative grants that right. It does not, and the ballot summary is
therefore affirmatively misleading.
The Proponents argue that, notwithstanding this discrepancy, the ballot
summary is an accurate statement of the Initiative’s effects because the Initiative
necessarily implies a right to sell electricity. We reject this argument. We do not
find any such implicit right in the proposed amendment. The ballot summary
expressly states that the Initiative grants the right to sell electricity, and the
Initiative does not do so. Because the ballot summary is affirmatively misleading,
it does not satisfy the clarity requirements of section 101.161, Florida Statutes.
Consequently, the Initiative should not be placed on the ballot.
CONCLUSION
For the reasons stated, we conclude that the ballot summary is misleading
and does not comply with section 101.161(1), Florida Statutes. Accordingly, this
Initiative should not be included in the ballot.
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It is so ordered.
CANADY, C.J., and POLSTON, LABARGA, LAWSON, and MUÑIZ, JJ.,
concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
Original Proceedings – Advisory Opinion – Attorney General
Ashley Moody, Attorney General, Amit Agarwal, Solicitor General, and John
Guard, Chief Deputy Solicitor General, Tallahassee, Florida,
for Petitioner
W. Christopher Browder, Chief Legal Officer, Orlando, Florida; and Jody Lamar
Finklea, General Counsel and Chief Legal Officer, and Daniel B. O’Hagan,
Assistant General Counsel & Regulatory Compliance Counsel, Tallahassee,
Florida,
for Orlando Utilities Commission and Florida Municipal Electric
Association, Inc. and Florida Municipal Power Agency
Jason Gonzalez of Shutts & Bowen LLP, Tallahassee, Florida, and Bryan A.
Garner of Garner & Garner LLP, Dallas, Texas,
for Tampa Electric Company and Duke Energy Florida, LLC
Rachael M. Crews and Thomas A. Cloud of GrayRobinson, P.A., Orlando, Florida,
for Florida League of Cities, Inc., Florida Association of Counties, Inc.,
Florida Sheriffs Association, and Florida Police Benevolent Association
Raoul G. Cantero, David P. Draigh, and Zachary B. Dickens of White & Case
LLP, Miami, Florida,
for the Florida Chamber of Commerce and the Florida Economic
Development Council
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Virginia C. Dailey of Panza, Maurer & Maynard, P.A., Tallahassee, Florida, and
Jonathan Barton Golden of Panza, Maurer & Maynard, P.A., Fort Lauderdale,
Florida,
for Audubon Florida, and The Nature Conservancy, Florida Program
Keith C. Hetrick, General Counsel, Samantha M. Cibula, Attorney Supervisor, and
Andrew B. King, Senior Attorney, Tallahassee, Florida,
for Florida Public Service Commission
Alain E. Boileau, City Attorney, Fort Lauderdale, Florida; Mark E. Berman, City
Attorney, Pompano Beach, Florida; Douglas R. Gonzales, City Attorney,
Hollywood, Florida; and John C. Rayson, Town Attorney, Davie, Florida,
for City of Fort Lauderdale, City of Hollywood, City of Pompano Beach and
Town of Davie
Glen J. Torcivia of Torcivia, Donlon, Goddeau & Ansay, P.A., West Palm Beach,
Florida; Wade C. Vose of Vose Law Firm, LLP, Winter Park, Florida; Kathryn
Michelle Blakenship Jordan of Blakenship Jordan, Chipley, Florida; and Donia
Roberts of Donia Adams Roberts, P.A., Belle Glade, Florida,
for City of Belle Glade, Village of Indiantown, Cities of Chipley and
Vernon, and Lake Okeechobee Regional Alliance of Palm Beach County,
Inc.
Daniel Nordby, Benjamin Gibson, and Amber Stoner Nunnally of Shutts &
Bowen, LLP, Tallahassee, Florida,
for Associated Industries of Florida, Florida Health Care Association, and
Florida Hospital Association
Glenn Burhans, Jr., of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.,
Tallahassee, Florida,
for Partnership for Affordable Clean Energy a/k/a Energy Fairness
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Barry Richard of Greenberg Traurig, P.A., Tallahassee, Florida,
for Florida Power & Light Company and Gulf Power Company
William N. Spicola, Tallahassee, Florida,
for American Senior Alliance
Gregory T. Stewart, Heather J. Encinosa, and Evan J. Rosenthal of Nabors, Giblin
& Nickerson, P.A., Tallahassee, Florida,
for JEA
Kenneth W. Sukhia of Sukhia & Williams Law PLLC, Tallahassee, Florida,
for Citizens for Energy Choices
George N. Meros, Jr., D. Bruce May, Jr., and Tara R. Price of Holland & Knight,
LLP, Tallahassee, Florida; and Michelle L. Hershel of Florida Electric
Cooperatives Association, Inc., Tallahassee, Florida,
for The Florida Electric Cooperatives Association, Inc.
Matthew J. Conigliaro of Carlton Fields, P.A., Tampa, Florida,
for Florida Association of Realtors, Inc. d/b/a Florida Realtors
Jeremiah Hawkes, General Counsel, and Ashley Istler, Deputy General Counsel,
Tallahassee, Florida,
for The Florida Senate; and Bill Galvano, in his official capacity as President
of the Florida Senate
Daniel Bell, General Counsel, and J. Michael Maida, Deputy General Counsel,
Tallahassee, Florida,
for Florida House of Representatives
M. Stephen Turner of Nelson Mullins Broad and Cassel, Tallahassee, Florida,
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for Floridians for Affordable Reliable Energy (FARE), Urban League of
Palm Beach County, Jacksonville Urban League, and the Central Florida
Urban League
Kenneth W. Sukhia of Sukhia & Williams Law, PLLC, Tallahassee, Florida,
for Citizens for Energy Choices
Warren Rhea, Corporate Counsel, Infinite Energy, Inc., Gainesville, Florida,
for Infinite Energy, Inc., NRG Energy, Inc., Vistra Energy Corporation,
National Energy Marketers Association, and Energy Choice Coalition
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