Kenneth J. Detzner, etc. v. League of Women Voters of Florida

Supreme Court of Florida
____________
No. SC18-1368
____________
KENNETH J. DETZNER, etc.,
Appellant,
vs.
LEAGUE OF WOMEN VOTERS OF FLORIDA, et al.,
Appellees.
October 15, 2018
PER CURIAM.
Appellant, Kenneth Detzner, Secretary of the Florida Department of State,
seeks review of League of Women Voters of Florida, Inc. v. Detzner, No. 2018-
CA-001523 (Fla. 2d Cir. Aug. 20, 2018). The circuit court granted summary
judgment in favor of the League of Women Voters (LWV) and enjoined Detzner
from placing Revision 8 on the ballot for the November 2018 general election.
Detzner appealed the decision 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.
This Court considered this cause at oral argument on September 5, 2018, and
on September 7, 2018, issued an order affirming the decision of the circuit court.
This opinion provides the reasons for our decision.
Background
Article XI, section 2, of the Florida Constitution establishes the Constitution
Revision Commission (CRC) to convene every twenty years to propose revisions
to the Florida Constitution. See Art. XI, § 2, Fla. Const. Then, the proposed
constitutional amendment must be “submitted to the electors at the next general
election.” Art. XI, § 5(a), Fla. Const.
On March 21, 2018, the Constitution Revision Commission (CRC),
approved Proposal 71, which would have made the following revision to Article
IX, Section 4(b):
(b) The school board shall operate, control, and supervise all
free public schools established by within the school district and
determine the rate of school district taxes within the limits prescribed
herein. Two or more school districts may operate and finance joint
educational programs.
The sponsor of the proposal stated during debate that the revision was intended to
overrule Duval County School Board v. State Board of Education, 998 So. 2d 641
(Fla. 1st DCA 2008), and to allow the power to authorize new charter schools to be
assigned to any of a variety of potential public or private entities.
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The CRC combined Proposal 71 with Proposal 43 and Proposal 10, which
also included changes to Article IX of the Florida Constitution. Later, the
language was revised to read:
(b) The school board shall operate, control, and supervise all
free public schools established by the district school board within the
school district and determine the rate of school district taxes within
the limits prescribed herein. Two or more school districts may
operate and finance joint educational programs.
A motion to unbundle the three proposals was unsuccessful.
The CRC drafted and approved the following title and summary for
inclusion on the ballot:
CONSTITUTIONAL AMENDMENT
ARTICLE IX, SECTION 4, NEW SECTION
ARTICLE XII, NEW SECTION
SCHOOL BOARD TERM LIMITS AND DUTIES; PUBLIC
SCHOOLS.—Creates a term limit of eight consecutive years for
school board members and requires the legislature to provide for the
promotion of civic literacy in public schools. Currently, district
school boards have a constitutional duty to operate, control, and
supervise all public schools. The amendment maintains a school
board’s duties to public schools it establishes, but permits the state to
operate, control, and supervise public schools not established by the
school board.
On July 12, 2018, LWV filed a complaint seeking to enjoin Detzner, in his
capacity as Secretary of State, from placing Revision 8 to the Florida Constitution
on the November 2018 general election ballot. LWV argued that the revision
could not be lawfully submitted to Florida voters because the ballot title and
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summary fail to inform voters of the chief purpose of the revision and are
affirmatively misleading as to the true purpose and effect of the revision. The
parties agreed to an expedited procedure through cross-motions for summary
judgment, the trial court heard arguments on August 17, 2018, and, on August 20,
2018, granted summary judgment in favor of LWV and denied Detzner’s motion.
In its order granting summary judgment to LWV, the circuit court
determined that the ballot summary “invents a category of school . . . undefined in
Florida law.” Therefore, the court reasoned, “both the text and the summary are
entirely unclear as to which schools will be affected by the revision.” “The failure
to use the term voters would understand, ‘charter schools,’ as well as the use of a
phrase that has no established meaning under Florida law, fails to inform voters of
the chief purpose and effect of this proposal.” The court found that the
deficiencies here were similar to those discussed in Florida Department of State v.
Florida State Conference of NAACP Branches, 43 So. 3d 662 (Fla. 2010), stating,
“[N]owhere does the ballot summary inform the voter of the essential role school
boards play in authorizing new schools, and nowhere does the language inform the
voter that this role is intended to be diluted by Revision 8.”
Additionally, the circuit court determined that the title was misleading
through omission, stating that “the vague reference to ‘school board . . . duties’ is
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presumably intended to allude to Proposal 71[1] [but] a voter could easily
believe . . . that it consists solely of a proposal to limit the term limits for school
boards.” The circuit court also found the ballot summary affirmatively misleading,
stating that it “is conspicuously silent about who or what would undertake these
responsibilities for schools not established by the school board.” In conclusion, the
circuit court found:
Because the ballot summary for Revision 8 clearly and conclusively
fails to adequately inform the voter of the chief purposes and effects
of the revision, and is affirmatively misleading, placement of Revision
8 on the ballot would violate Article XI, Section 5, Florida
Constitution, and Section 101.161(1), Florida Statutes.
On August 20, 2018, Detzner filed a notice of appeal with the First District
Court of Appeal. On August 22, 2018, the First District certified the case for pass-
through jurisdiction, finding that the appeal involves a question of great public
importance that requires immediate resolution by this Court.
Standard of Review
Section 101.161(1), Florida Statutes (2018), 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
1. Proposal 71 refers to the CRC proposal restricting the duties of the
district school boards that was one of three proposals included in Revision 8.
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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, a ballot summary 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 ballot summary
of the amendment or other public measure and the ballot title to
appear on the ballot shall be embodied in the constitutional revision
commission proposal, constitutional convention proposal, taxation and
budget reform commission proposal, or enabling resolution or
ordinance. The ballot summary 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. This subsection does not apply to
constitutional amendments or revisions proposed by joint resolution.
§ 101.161(1), Fla. Stat. (2018). “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 truth-in-packaging law for the ballot. Id. at 13. The accuracy
requirement applies to all proposed constitutional amendments. Id. at 16.
We have explained “that the ballot [must] be fair and advise the voter
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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. Armstrong,
773 So. 2d at 15 (“Although the ballot summary faithfully tracked the text of
the proposed amendment, the summary failed to explain that the amendment
would supersede an already existing constitutional provision . . . .”). 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).
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. Proposed amendments to the Florida Constitution may
originate in any of several sources, including the Legislature, revision
commission, citizen initiative, or constitutional convention.
Regardless of source, a proposed amendment ultimately must be
submitted to the electors for approval at the next general election.
Armstrong, 773 So. 2d at 11 (footnotes omitted).
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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 . . . . 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.
Id. at 21.
We have 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. In assessing the ballot
title and summary for compliance with section 101.161(1), the reviewing 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.” Advisory Op.
to Atty. Gen. re Fla. Marriage Protection Amendment, 926 So. 2d 1229, 1236 (Fla.
2006). However, this Court does not consider the substantive merit of the
proposed amendment. Dep’t of State v. Slough, 992 So. 2d 142, 147 (Fla. 2008).
The title and summary must also be accurate and informative. See Advisory
Opinion to the Att’y 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
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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
summary does 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, we have 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 Att’y 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).
Analysis
This case presents two issues for our consideration: (1) whether Revision
8’s ballot title and summary is clearly and conclusively defective because it fails to
inform voters of its effect and (2) whether the ballot title and summary are
misleading. We conclude that because the ballot summary fails to include a clear
statement of the chief purpose of the revision and fails to inform voters of its true
meaning and ramifications, the ballot language is defective. That the ballot
summary is unclear is best demonstrated by the proponents of the proposed
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revision, who each give different meaning to the language of the revision, its title,
and its summary. We therefore affirm the decision of the circuit court.
Since 1998, the Florida Constitution has provided, “Adequate provision shall
be made by law for a uniform, efficient, safe, secure, and high quality system of
free public schools that allows students to obtain a high quality education . . . .”
Art. IX, § 1(a), Fla. Const. Also since then, section 4 has provided:
SECTION 4. School districts; school boards.—
(a) Each county shall constitute a school district; provided, two or
more contiguous counties, upon vote of the electors of each county
pursuant to law, may be combined into one school district. In each
school district there shall be a school board composed of five or more
members chosen by vote of the electors in a nonpartisan election for
appropriately staggered terms of four years, as provided by law.
(b) The school board shall operate, control and supervise all free
public schools within the school district and determine the rate of
school district taxes within the limits prescribed herein. Two or more
school districts may operate and finance joint educational programs.
In relevant part, the most recent CRC proposed the following revision to section
4(b) to be included on the ballot in the November 2018 general election:
(b) The school board shall operate, control, and supervise all
free public schools established by the district school board within the
school district and determine the rate of school district taxes within
the limits prescribed herein. Two or more school districts may
operate and finance joint educational programs.
Because section 101.161(1) requires a ballot summary to state “the chief
purpose” of the proposed amendment, we look to objective criteria, like the
amendments’ main effect to determine whether a ballot summary complies with
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the statute. Armstrong, 773 So. 2d at 18. Here, the ballot summary provides,
“Currently, district school boards have a constitutional duty to operate, control, and
supervise all public schools. The amendment maintains a school board’s duties to
public schools it establishes, but permits the state to operate, control, and supervise
public schools not established by the school board.”
While the ballot summary informs voters that district school boards will no
longer have the authority to operate, control, and supervise public schools that they
do not establish, the summary fails to explain who or what, other than district
school boards, currently has the authority to establish public schools, which
categories of public schools will be affected, and who or what will have the
authority to establish future public schools if voters approve the revision. Failure
to explain this key component of the revision is exacerbated by the fact that the
phrase “established by” is not one that is consistently used in Florida Statutes,
when addressing public schools. Compare § 1002.32, Fla. Stat. (2018)
(“establish[ing] a category of public schools to be known as developmental
research (laboratory) schools (lab schools)”), with § 1002.33, Fla. Stat. (2018)
(explaining how a charter school may be “formed”). Because it is a phrase that is
neither commonly nor consistently used, it cannot be commonly understood by
voters.
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Further, the ballot summary fails to explain which public schools or
categories of schools will be affected. Currently, in addition to the general
provision for K-12 education in section 1003.02, Florida Statutes (2018), providing
that schools boards “must establish, organize, and operate their public K-12
schools and educational programs,” the Florida Statutes provide for five additional
public schools or categories of public schools.2 It is entirely unclear from both the
2. One of these categories and one of these schools is said to be
“established” by the statutory provision and one additional school is “created.”
The public schools and categories of public schools specified in the Florida
Statutes are as follows:
1. Development research (laboratory) schools. § 1002.32, Fla. Stat. (2018).
“There is established a category of public schools to be known as
developmental research (laboratory) schools (lab schools).” § 1002.32(2),
Fla. Stat. (2018) (emphasis added).
2. Charter schools. § 1002.33, Fla. Stat. (2018). “All charter schools in
Florida are public schools and shall be part of the state’s program of public
education. A charter school may be formed by creating a new school or
converting an existing public school to charter status.” § 1002.33(1), Fla.
Stat. (2018).
3. New World School of the Arts. § 1002.35, Fla. Stat. (2018). “The New
World School of the Arts is created as a center of excellence for the
performing and visual arts, to serve all of the State of Florida.”
§ 1002.35(1), Fla. Stat. (2018) (emphasis added).
4. Florida School for the Deaf and the Blind. § 1002.36, Fla. Stat. (2018).
5. Florida Virtual School. § 1002.37, Fla. Stat. “The Florida Virtual School is
established for the development and delivery of online and distance learning
education.” § 1002.37(1)(a), Fla. Stat. (2018) (emphasis added).
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text of the amendment and the ballot language which of these public schools, or
categories of public schools, would be affected. Therefore, the problem “lies not
with what the summary says, but, rather, with what it does not say.” Askew, 421
So. 2d at 156. Because voters will simply not be able to understand the true
meaning and ramifications of the revision, the ballot language is clearly and
conclusively defective.
That the voters will not be informed as to the true meaning and ramifications
of the revision is evinced by the varying explanations offered by the proponents.
For example, Detzner argues that local school boards have no constitutional
authority to establish or authorize public schools and asserts that the revision
would not change the status quo. Meanwhile, the Florida Consortium of Public
Charter Schools and Florida Charter School Alliance, as amici curiae, argue that
the proposed revision would affect all public schools. Further, they argue that the
proposed revision serves to “eliminate the constitutional barrier to school choice.”
On the other hand, the Urban League of Miami and the Central Florida Urban
League, amici curiae, argue that Revision 8 presents a much needed change by
stripping the local school boards of their ability to continue their hostility towards
public charter schools.
Because proponents of the proposed revision each give different meaning to
the “clear and unambiguous” language of the revision, its title, and its summary,
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logic dictates that the language is neither clear nor unambiguous. Accordingly, the
voters cannot be said to have fair and sufficient notice to intelligently cast his or
her vote.
In Duval County School Board v. State Board of Education, 998 So. 2d 641
(Fla. 1st DCA 2008), the First District found that section 1002.335, Florida
Statutes (2006), was facially unconstitutional. The Legislature, in 2006, enacted
section 1002.335 to create the “Florida Schools of Excellence Commission” as an
independent body with the power to authorize charter schools throughout the State
of Florida. Id. at 642. Prior to its enactment, the First District held, “only district
school boards could authorize charter schools.” Id. Under the statute, district
school boards had to seek approval from the State Board of Education to exercise
that power. Relying on this Court’s reasoning in its decision in Bush v. Holmes,
919 So. 2d 392, 398 (Fla. 2006), the First District found that the statute removed
constitutional authority from the school boards and relegated them to essentially
ministerial functions. Accordingly, the First District found that section 1002.335
“pose[d] a present total and fatal conflict with article IX, section 4 of the Florida
Constitution.” Duval Cty., 998 So. 2d at 644.
The decision in Duval County demonstrates that, as currently interpreted, the
Florida Constitution provides that only district school boards may authorize charter
schools. Id. at 642. Duval County belies Detzner’s argument that the Legislature
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currently has that authority and that the Revision does not alter the status quo.
Therefore, it appears that the circuit court correctly determined that the ballot title
and summary fly under false colors. As stated by this Court in Armstrong, it is not
sufficient for a ballot summary to faithfully track the text of a proposed
amendment, Armstrong, 773 So. 2d at 15, 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.
As demonstrated by the arguments of the Revision 8 proponents, this
language either does nothing or changes everything. Considered within the context
of the Constitution as a whole, which provides for a State Board of Education that
regulates public education at the state level, and the Florida Statutes, which
provide five distinct types of public schools, the ballot title and summary to
Revision 8 do not ensure that the “electorate is advised of the true meaning, and
ramifications, of [the] amendment.” Advisory Opinion to the Attorney Gen. re Tax
Limitation, 644 So. 2d at 490 (quoting Askew, 421 So. 2d at 156).
Conclusion
For the foregoing reasons, we previously affirmed the judgment of the
circuit court enjoining Detzner from placing Revision 8 on the ballot for the
November 2018 general election. No motion for rehearing will be entertained.
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It is so ordered.
PARIENTE, LEWIS, QUINCE, and LABARGA, JJ., concur.
PARIENTE, J., concurs with an opinion, in which LEWIS, J., concurs.
LEWIS, J., concurs with an opinion.
CANADY, C.J., dissents with an opinion, in which POLSTON and LAWSON, JJ.,
concur.
PARIENTE, J., concurring.
I fully concur with the majority opinion. To be clear, our role at this stage is
not to address the merits of the proposed constitutional amendment.3 Rather, our
role is to ensure that the ballot language accurately advises voters “of the true
meaning, and ramifications, of an amendment.” Askew v. Firestone, 421 So. 2d
151, 156 (Fla. 1982). Because the ballot title and summary for Revision 8 fail to
explain to voters that approval of the amendment would significantly alter the
ability of local district school boards to approve the establishment of free public
schools within their district, specifically but not limited to charter schools, we had
no choice but to strike the amendment from the ballot.4
3. See Fla. Dep’t of State v. Slough, 992 So. 2d 142, 147 (Fla. 2008).
4. See Roberts v. Doyle, 43 So. 3d 654, 659 (Fla. 2010) (“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.”); Advisory Op. to Att’y Gen. re Term Limits Pledge, 718 So. 2d 798,
804 (Fla. 1998) (“When the summary of a proposed amendment does not
accurately describe the scope of the text of the amendment, it fails in its purpose
and must be stricken.”).
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Article IX, section 4(b), of the Florida Constitution presently empowers
local school boards with operating, controlling, and supervising “all free public
schools within the school district.” Art. IX, § 4(b), Fla. Const. Section 1003.02,
Florida Statutes (2018), builds on this constitutional authority, stating that “district
school boards must establish, organize, and operate their public K-12 schools.”
§ 1003.02, Fla. Stat. (2018) (emphasis added). Public K-12 schools in Florida
include, for example, charter schools. Id. § 1002.33(1). Currently, a charter
school is not “created” until the district school board approves the application. See
Fla. Dep’t of Educ., Frequently Asked Questions, How Are Charter Schools
Created, Organized, and Operated?, http://www.fldoe.org/schools/school-
choice/charter-schools/charter-school-faqs.stml (last visited Sept. 29, 2018).
By limiting a district school board’s authority to operate, control, and
supervise to only those public schools it establishes, a somewhat indirect—but
significant—limitation is also placed on the authority of district school boards to
establish, or approve the creation of, public schools within their districts. It is this
significant but undisclosed effect of the amendment that had the fervent support of
charter school advocates. See Br. of Amici Curiae the Urban League of Miami &
the Cent. Fla. Urban League, at 7 (explaining that the “ballot proposal was
designed, in material part, to eliminate local school boards’ virtual monopoly over
new public schools”).
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Rather than advise voters of this critical change—which would have allowed
a debate on the merits of centralized, uniform control of the establishment of
charter schools—the ballot summary fails to explain the true effect of the
amendment. In fact, the ballot summary disguises this monumental change to our
state constitution by vaguely referring to school board “duties” and using terms
that voters would not easily understand, such as “established by” and “not
established by”—terms not previously used in the Florida Constitution.
It is true that a ballot summary need not “resolve all questions concerning its
implementation.” Dissenting op. at 32 (Canady, C.J.). But a change of this
magnitude to the way public schools, including charter schools, are established
throughout the state is not one that should be hidden from voters. This is
particularly so when the change pertains to a subject that is of great importance to
voters, such as public education.5
Interestingly, the initial version of this proposal clearly articulated the
change sought. It would have added the following to article IX, section 4(b):
Nothing herein may be construed to limit the legislature from
creating alternative processes to authorize the establishment of charter
schools within the state by general law.
5. See generally Kyra Gurney & Kristen M. Clark, Here’s How the
Controversial New Schools Law Will Impact South Florida, Miami Herald (June
15, 2017),
https://www.miamiherald.com/news/local/education/article156444609.html.
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App’x Resp’s Mot. for Summary J. at App’x 2. For whatever reason, the sponsor
subsequently “filed a delete-all amendment” in the form ultimately approved by
the Constitution Revision Commission (CRC), explaining that “the delete-all
amendment [would] achieve the exact same outcome.” CRC 2017-2018, transcript
of meeting at 55 (Mar. 21, 2018).
The dissent complains that “[t]he people should not be prevented from
making their own decision concerning the merits of the proposed amendment.”
Dissenting op. at 34-35 (Canady, C.J.). I agree. However, it is impossible for
voters to make their own decision about the merits of the amendment when the
ballot language fails to clearly explain the true effect of the proposal.
Finally, I agree with Justice Lewis that the manner in which Revision 8 was
bundled would confuse voters as to its true purpose and effect. See concurring op.
at 22 (Lewis, J.). Indeed, the positioning of the three separate proposals in the
ballot summary added to the misleading nature of the amendment by explaining
term limits and civic literacy before the ambiguous and cursory explanation of the
change to the operation and establishment of free public schools. As the summary
was written, voters would have been presented with “two . . . proposals that are
popular and easily understood” before getting to the “vague but significant
proposal” relegated to the end of the ballot summary. Br. of League of Women
Voters, at 28.
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Further, as CRC Commissioner Joyner argued in opposition to the bundling
of the proposals, as a result of the bundling, voters who really wanted term limits
and civic literacy would be forced “to give up control of [their] local schools.”
CRC 2017-2018, transcript of meeting at 163 (Apr. 16, 2018). She went on to
explain:
This gift to the charter school industry is cobbled — cobbled
with School Board term limits and civics education to make it more
palatable. Kind of like taking a spoonful of cod liver oil and figuring
out how to make it easier to swallow.
....
And at the end of the day, should you decide stripping local controls
belongs in the State Constitution, why hitch it to anything? Why
doesn’t it stand alone?
If it is so worthy and so good that it has your endorsement and
your name behind it, then let this charter school measure stand on its
own merit and let the people decide. Let it be local control. Let it be
the people’s vote.
I can’t support this [proposal]. The other measures, they’re up
for grabs. Term limits, civic literacy, they’re appealing, but this one is
the overriding game-changer that will forever make education
different in the State of Florida because someone who has—some
entity, no accountability to the people, they don’t elect them, if we put
this in the Constitution, we are giving away local control and our
ability to have the major say in the education system of the State of
Florida.
Id. at 180-83. Commissioner Martinez echoed this sentiment:
But [this proposal] is a big deal. It is a game-changer. . . .
The public should be entitled to vote on that issue. Let’s debate the
idea, up or down, as to whether or not they want [it], but don’t put it together
with civic literacy and term limits. They’re just not related. They may be
dealing with education generally, but they are very different parts of our
educational system.
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Id. at 178.
Although the CRC is not bound by a single-subject requirement, at least
one CRC commissioner supported bundling the three separate proposals to “help”
the other education-related proposals pass. See concurring op. at 22 (Lewis, J.).
Combining popular and non-controversial proposals with a vaguely worded but
ultimately controversial proposal is the very essence of logrolling. See In re
Advisory Op. to the Att’y Gen., 636 So. 2d 1336, 1339 (Fla. 1994) (explaining that
logrolling is “a practice wherein several separate issues are rolled into a single
initiative in order to aggregate votes or secure approval of an otherwise unpopular
issue”). While nothing prevents the CRC from doing this, the CRC may not do so
in a way that, as here, misleads voters as to the amendment’s true effect.
For these reasons, I fully concur with the majority opinion striking the
amendment from the November 2018 general election ballot.
LEWIS, J., concurs.
LEWIS, J., concurring.
I concur with the majority that Revision 8 should not be placed on the ballot
for the November 2018 general election because it fails to clearly state the chief
purpose of the revision and it fails to inform voters of its true meaning and
ramifications. I also write separately because I believe that there is an additional
reason Revision 8 must be stricken—namely, the proposed revision bundles
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multiple issues into one amendment, which causes confusion and ambiguity as to
the chief purpose of the proposal.
Revision 8 attempts to bundle three issues affecting the Florida public school
system: (1) school board member term limits, (2) the Legislature’s promotion of
civic literacy in public schools, and (3) the State’s ability to operate, control, and
supervise public schools not established by the district school boards—i.e., charter
schools, see per curiam op. at 10-14. While all three of these matters concern the
public school system on a general level, each targets and affects very specific—and
very different—issues within that public school system, which only serves to
confuse and distract the public as to the revision’s true purpose and effect. In fact,
at the March 20, 2018, Constitution Revision Commission (CRC) Session,
Revision 8’s sponsor, Commissioner Gaetz, explicitly acknowledged that the
bundling would “help some of those other education issues pass. I don’t think you
are going to get too many people in the state of Florida who are going to look at a
ballot that says our children ought to be civically literate and say we are sure as
heck against that.” However, bundling controversial issues into an amendment
containing a widely popular issue to trick the voters is precisely the type of
misleading language expressly forbidden under section 101.161(1), Florida
Statutes (2018).
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This Court has from time immemorial warned against bundling multiple
issues into one constitutional amendment due to the inherently misleading nature
of combining multiple subjects and the problematic choice it requires voters to
make. See City of Coral Gables v. Gray, 19 So. 2d 318, 322 (Fla. 1944) (“Yet, if
required to vote upon the proposed amendment as presently framed the electors
will be put to it to accept, or reject, all subject matters contained therein, in toto,
without the opportunity for discrimination. . . . [T]he elector would be put in the
position where, in order to aid in carrying a proposition which he considered good
or wise, he would be obliged to vote for another which he would otherwise reject
as bad or foolish. It would sanction the practice of combining meritorious and
vicious legislation in one proposal, so that the former could not be secured without
submitting to the latter.”); see also Antuono v. City of Tampa, 99 So. 324, 326 (Fla.
1924). Nevertheless, the constitutional scheme under which the Court operated
when announcing these warnings was vastly different than the one under which the
Court today operates.
Currently, the Florida Constitution describes four procedures through which
the Constitution can be amended or revised: (1) a joint resolution by the
Legislature, Art. XI, § 1, Fla. Const., (2) a proposal by a constitution revision
commission, Art. XI, § 2, Fla. Const., (3) a citizens’ initiative process, Art. XI, § 3,
Fla. Const., and (4) the establishment of a constitutional convention, Art. XI, § 4,
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Fla. Const. Out of these four procedures, only the citizens’ initiative contains the
restriction that a proposed amendment be limited to one subject. Art. XI, § 3, Fla.
Const. As this Court has explained,
It is apparent that the authors of article XI realized that the
initiative method did not provide a filtering legislative process for the
drafting of any specific proposed constitutional amendment or
revision. The legislative, revision commission, and constitutional
convention processes of sections 1, 2 and 4 all afford an opportunity
for public hearing and debate not only on the proposal itself but also
in the drafting of any constitutional proposal. That opportunity for
input in the drafting of a proposal is not present under the initiative
process and this is one of the reasons the initiative process is
restricted to single-subject changes in the state constitution.
Fine v. Firestone, 448 So. 2d 984, 988 (Fla. 1984) (emphasis added); see also
Charter Review Comm’n of Orange Cty. v. Scott, 647 So. 2d 835, 837 (Fla. 1994)
(“[O]ur state Constitution Revision Commission process . . . embodies a number of
procedural safeguards that reduce the danger of logrolling and diminish the
possibility of deception.”).
The safeguards we announced allowing public input in the drafting of a
constitutional amendment pursuant to sections 1, 2, and 4, however, do not
foreclose the possibility that a proposed revision under one of these “safer”
constitutional sections might nonetheless impermissibly bundle multiple unrelated
issues into one general amendment.6 Within the context of article XI, section 2,
6. It is also worth noting that the safeguard enunciated in Fine was absent in
this case. Although the CRC did hold public hearings on each revision, these
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the inquiry turns on whether the bundling of multiple issues within one amendment
results in a misleading ballot summary and title. Cty. of Volusia v. Detzner, Fla. L.
Weekly S355, S356 (Fla. Sept. 7, 2018) (“It follows that the bundling of measures
creates a defect only if the measures are presented on the ballot in a misleading
way.”). As discussed by the majority at length, Revision 8’s ballot summary
language is defective, misleading, and unclear. See per curiam op. at 9. In
addition to the already-ambiguous language contained within the ballot summary
with regard to charter schools, muddling multiple subjects in this proposed revision
makes it very difficult—if not impossible—for a voter to fully understand the chief
purpose of the measure, as required by section 101.161(1).
A voter cannot intelligently cast his or her ballot if multiple issues of varying
complexity and clarity are lumped together under one general amendment—
especially when presented through defective ballot summary language. Instead,
the bundling in Revision 8 results in voter confusion and serves to disguise the
revision’s true purpose and effect. See Armstrong v. Harris, 773 So. 2d 7, 16 (Fla.
2000) (“A ballot title and summary cannot either ‘fly under false colors’ or ‘hide
the ball’ as to the amendment’s true effect.”).
hearings concluded before the CRC began drafting Revision 8, bundling the three
individual issues under one proposal. Thus, the public was not afforded any input
or opportunity to be heard during the drafting of the bundled revision.
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For the foregoing reasons, I would strike Revision 8 from the November
2018 general election ballot due to the improper bundling, in addition to the
reasons expressed within the majority opinion.
CANADY, C.J., dissenting.
Because I conclude that the appellees have failed to show that the ballot
summary for Revision 8 is clearly and conclusively defective, I dissent from the
majority’s decision to strike this proposal from the ballot. The majority goes
astray by invalidating the proposal on the basis of supposed deficiencies in the text
of the proposed amendment itself. Under the standards required by our decisions,
the ballot summary here correctly identifies the chief purpose of the proposed
amendment. And the summary in no way either affirmatively misleads or misleads
by omission. The people of Florida should have the opportunity to vote on this
proposal to amend the Constitution.
The challenged portion of the ballot summary, which the majority declares
to be defective, relates to a proposed change in article IX, section 4(b) regarding
the scope of the duty (and concomitant authority) of school boards to “operate,
control, and supervise” free public schools. This constitutional provision currently
provides that each school board “shall operate, control and supervise all free public
schools within the school district.” The proposed amendment limits the scope of
this provision to schools “established by the district school board.” So under the
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proposed amendment, each “school board shall operate, control, and supervise all
free public schools established by the district school board within the school
district.” (Emphasis added.)
From this proposed change in the text of article IX, section 4(b), five
unmistakable and interrelated points emerge. (1) Under the proposed amendment,
constitutional room will exist not only for school-board-established schools but
also for a category of free public schools that are not “established by the district
school board.” (2) The existing constitutional duty of school boards to “operate,
control and supervise” all free public schools will be curtailed by the proposed
amendment. (3) Under the proposed amendment, school boards will have the
constitutional duty (and concomitant authority) to “operate, control, and supervise”
the schools they establish. (4) School boards will not, however, have any such
constitutional duty (and authority) regarding schools they do not establish.
(5) Understood in the context of the “paramount duty of the state” regarding public
education established in article IX, section 1, the “operat[ion], control, and
supervis[ion]” of public schools not established by a school board will necessarily
be under the purview of the state. Anyone who understands these five points will
necessarily understand the chief purpose of this proposed amendment and will not
be misled concerning its effect. And anyone who reads the text of the summary
will readily be led to an understanding of each basic point.
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The summary contains three basic elements regarding this proposed change
in the Constitution. These three elements in combination elegantly explain what
the amendment does. In the first element, the summary discloses the crucial fact
regarding the existing constitutional provision: “Currently, district school boards
have a constitutional duty to operate, control, and supervise all public schools.”
This disclosure of the constitutional status quo provides the necessary basis for
understanding the effect of the proposed amendment in curtailing the scope of
school board duties. The second and third elements are contained in a single
sentence that sets up a contrast: “The amendment maintains a school board’s duties
to public schools it establishes, but permits the state to operate, control, and
supervise public schools not established by the school board.” (Emphasis added.)
Thus, the second element of the summary points out that the proposed amendment
“maintains a school board’s duties to public schools it establishes.” (Emphasis
added.) Third, the summary—having identified the scope of the duties of school
boards that are maintained—specifies what the proposal changes by stating that the
amendment “permits the state to operate, control, and supervise public schools not
established by the school board.”
The five points that emerge from the text of the amendment are all made
evident by these disclosures contained in the summary. The summary brings home
the distinction made in the text of the amendment between school-board-
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established schools and non-school-board-established schools. In doing so, the
summary makes clear both that the duty of school boards to “operate, control, and
supervise” currently extends to all public schools and that the duty of school
boards will be curtailed by the proposed amendment. Explaining the effect of the
amendment, the summary identifies the category of school-board-established
schools as falling within the scope of the school board’s duty to “operate, control,
and supervise.” It similarly identifies the category of non-school-board-established
schools as falling outside the scope of the school board duty to “operate, control,
and supervise.” And it recognizes the authority of the State regarding the
operation, control, and supervision of public schools not established by a school
board that necessarily follows from the elimination of the school board duty to
“operate, control, and supervise” such schools.
The majority does not—because it cannot—effectively dispute any of this.
Instead, it attempts to change the subject. Rather than focusing on whether the text
of the summary accurately discloses the substance of the proposed amendment, the
majority—staying on the path blazed by the trial court—assails the text of the
proposed amendment itself. The majority jumps to the conclusion that the
summary is misleading because certain questions about how the amendment would
be implemented are left open by the text of the amendment and therefore not
addressed in the summary. The majority’s opinion thus repeatedly reveals that the
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summary is condemned not because it is misleading, but because of what the
majority views as deficiencies in the proposed constitutional amendment itself.
This is a clear departure from the fundamental principle of our jurisprudence that
in determining the adequacy of a ballot summary, we do not review the merits of
the proposed constitutional amendment. Fla. Dep’t of State v. Slough, 992 So. 2d
142, 147 (Fla. 2008).
The majority cites the trial court’s conclusion that “both the text and the
summary are entirely unclear as to which schools will be affected by the revision.”
Majority op. at 4 (emphasis added). The majority also repeats the trial court’s
criticism that the ballot summary fails to “inform the voter of the essential role
school boards play in authorizing new schools.” Id. The majority also refers to the
trial court’s conclusion that the summary is misleading because it “is
conspicuously silent about who or what would undertake the[] responsibilities [to
operate, control, and supervise] for schools not established by the school board.”
Majority op. at 5.
Although the majority acknowledges that “we look to objective criteria” in
evaluating the sufficiency of a ballot summary, majority op. at 10, it nonetheless
focuses on subjective matters by asserting that the deficiency of the summary “is
best demonstrated by the proponents of the proposed revision, who each give
different meaning to the language of the revision, its title, and its summary.”
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Majority op. at 9-10. Such subjective matters concerning what various proponents
have said about a proposal are beside the point. The majority’s line of analysis
flies in the face of the principle established in our case law—to which the majority
thoughtfully and meaninglessly tips its hat—that in determining whether a
summary accurately describes a proposed amendment, “a court must look not to
subjective criteria espoused by the amendment’s sponsor but to objective criteria
inherent in the amendment itself.” Armstrong v. Harris, 773 So. 2d 7, 18 (Fla.
2000) (emphasis added).
Of course, the majority discusses the text of the amendment. But it does so
not to determine if the summary accurately reflects the substance of the
amendment. Instead, the majority—like the trial court—zeros in on perceived
flaws in the amendment. The majority complains that the summary fails to explain
“which categories of public schools will be affected, and who or what will have the
authority to establish future public schools if voters approve the revision.”
Majority op. at 11. The majority also faults the use of “the phrase ‘established
by’ ” as one that is not “consistently used in Florida Statutes.” Id. The majority
sums up: “It is entirely unclear from both the text of the amendment and the ballot
language which of these public schools, or categories of public schools, would be
affected. Therefore, the problem ‘lies not with what the summary says, but, rather,
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with what it does not say.’ ” Majority op. at 12-13 (emphasis added) (quoting
Askew v. Firestone, 421 So. 2d 151, 156 (Fla. 1982)).
From all this it is clear that the majority is condemning the summary because
the text of the amendment leaves open certain questions. The summary thus is
rejected because of what the text of the amendment “does not say.” Majority op. at
13 (quoting Askew, 421 So. 2d at 156). There is no requirement that a
constitutional amendment resolve all questions concerning its implementation.
And it is obvious that a proposed constitutional amendment is not bound by
existing statutory terms. Here, as in the case of many constitutional provisions,
space is established for the Legislature—which promulgates state policy through
laws consistent with the Constitution—to make various policy choices related to
implementation of the amendment. As the summary discloses, the amendment
clearly affects schools not established by a school board. The policy choices
related to such schools are properly left by the amendment to the Legislature. To
conclude otherwise—as the majority does—is to attack the substance of the
amendment itself.
The majority also concludes that the proposed amendment flies “under false
colors,” majority op. at 15, because the summary fails to inform the voters that
currently “only district school boards may authorize charter schools.” Majority
op. at 14 (emphasis added). In support of this conclusion, the majority cites Duval
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County School Board v. State Board of Education, 998 So. 2d 641, 642 (Fla. 1st
DCA 2008), a decision that invalidated “section 1002.335, Florida Statutes, which
established the ‘Florida Schools of Excellence Commission’ as an independent,
state-level entity with the power to authorize charter schools throughout the State
of Florida.” To begin with, the term “authorize” (or any cognate term) is not found
in the text of either the current constitutional provision or the proposed
amendment. Reference to “charter schools” is likewise absent. And the Duval
County decision does not establish an unfettered constitutional right of school
boards to authorize charter schools.
The Duval County court recognized that the challenged statute “relegat[ed]
local boards to essentially ministerial functions” concerning certain charter
schools. Id. at 644. In invalidating the statute, the court stated: “This statute
permits and encourages the creation of a parallel system of free public education
escaping the operation and control of local elected school boards.” Id. at 643
(emphasis added) (footnote omitted). The focus of the ruling was the removal
from local school boards of “all the powers of operation, control and supervision
of free public education specifically reserved in article IX, section 4(b) of the
Florida Constitution . . . with regard to charter schools sponsored by the
[Excellence] Commission.” Id. (emphasis added). Nowhere does this decision
establish the unfettered right of school boards to authorize or not authorize charter
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schools that is suggested by the majority opinion. Indeed, no such right currently
exists under Florida law. See § 1002.33(6)(c)3.a., Fla. Stat. (2018) (providing
process for appeal of school board denial of charter school application, authorizing
State Board of Education to “remand the application to the sponsor with its written
decision that the sponsor [school board] approve or deny the application” and
providing that the school board “sponsor shall implement the decision of the State
Board of Education”); see also Sch. Bd. of Palm Beach Cty. v. Fla. Charter Educ.
Found., Inc., 213 So. 3d 356, 359 (Fla. 4th DCA 2017) (rejecting challenge to
constitutionality of the charter school statute’s appeal provision based on school
board argument that the statute “empowers the State Board, and not the School
Board, to determine the creation of a charter school”). The decision concerning the
“authorization” of charter schools thus ultimately rests in the State Board of
Education. So the disclosure the majority says should be made concerning the
current state of the law would itself be misleading. The summary cannot be judged
defective for failing to include a misleading statement.
In sum, the majority has failed to identify any defect in the summary.7 The
people should not be prevented from making their own decision concerning the
7. I also reject the view expressed in the concurring opinions that Revision 8
is defective because it bundles three issues into one proposed amendment. The
Court recently rejected a similar argument regarding “bundling” in County of
Volusia v. Detzner, 2018 WL 4272435, 43 Fla. L. Weekly S355 (Fla. Sept. 7,
2018). Here, as in County of Volusia, “there is no basis for concluding” either
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merits of the proposed amendment. I strongly dissent from the decision to remove
this proposed amendment from the ballot.
POLSTON and LAWSON, JJ., concur.
Certified Judgments of Trial Courts in and for Leon County – John C. Cooper,
Judge - Case No. 372018CA001523XXXXXX – An Appeal from the District
Court of Appeal, First District, Case No. 1D18-3529
Pamela Jo Bondi, Attorney General, Daniel W. Bell, Deputy Solicitor General,
Edward M. Wenger, Chief Deputy Solicitor General, and Blaine H. Winship,
Special Counsel, Tallahassee, Florida,
for Appellant
Ronald G. Meyer and Lynn C. Hearn of Meyer, Brooks, Demma and Blohm, P.A.,
Tallahassee, Florida; Scott D. McCoy of Southern Poverty Law Center,
Tallahassee, Florida; Zoe M. Savitsky of Southern Poverty Law Center, New
Orleans, Louisiana; and Sam Boyd of Southern Poverty Law Center, Miami,
Florida,
for Appellees
Edward J. Pozzuoli, Stephanie Alexander, and Jeffrey S. Wood of Tripp Scott,
P.A., Fort Lauderdale, Florida,
for Amici Curiae The Urban League of Miami and The Central Florida
Urban League
“that the relationship between the issues addressed in separate measures identified
in the ballot summary results in deception of the voters” or that “the structure of
the ballot summary misleads the voters concerning what the proposal will do.” Id.
at S356. The Constitution contains an anti-bundling provision—known as a single
subject requirement—in article XI, section 3, which governs certain amendments
proposed through the initiative process. No similar requirement is contained in
article XI, section 2, which governs proposals advanced by the Constitution
Revision Commission. In the absence of such a requirement in the text of section
2, we should not impose one under a different label.
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Benjamin J. Gibson and Amber Stoner of Shutts & Bowen, LLP, Tallahassee,
Florida,
for Amici Curiae Florida Consortium of Public Charter Schools and Florida
Charter School Alliance
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