Kenneth J. Detzner, etc. v. Harry Lee Anstead

Supreme Court of Florida
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No. SC18-1513
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KENNETH J. DETZNER, etc.,
Appellant,
vs.
HARRY LEE ANSTEAD, et al.,
Appellees.
October 17, 2018
PER CURIAM.
Secretary of State Ken Detzner seeks review of the judgment of the Circuit Court
for the Second Judicial Circuit in Anstead v. Detzner, No. 2018-CA-1925 (Fla. 2d Cir. Ct.
Sept. 5, 2018), which granted a petition for writ of quo warranto filed by Appellees,
Harry Lee Anstead and Robert J. Barnas, and ordered that ballot titles and summaries of
three proposed amendments to the Florida Constitution (“Amendment 7,”1
1. Amendment 7 bundles a proposal that grants death benefits and a waiver of
certain educational expenses for qualifying survivors of first responders and military
members with a proposal requiring supermajority votes by university trustees and the
state university system board of governors to raise or impose legislatively authorized
fees, and with a proposal establishing the existing state college system as a constitutional
entity, with its governance structure.
“Amendment 9,”2 and “Amendment 11”3) be stricken from the November 2018 general
election ballot. The First District Court of Appeal certified the order as presenting a
question of great public importance requiring immediate resolution by this Court. We
have jurisdiction. See art. V, § 3(b)(5), Fla. Const. As explained below, we reverse the
judgment of the circuit court.
First, there is no basis for relief in quo warranto.4 A writ of quo warranto is the
means for determining “whether a state officer or agency has improperly exercised a
power or right derived from the State.” Fla. House of Reps. v. Crist, 999 So. 2d 601, 607
(Fla. 2008) (citing Martinez v. Martinez, 545 So. 2d 1338, 1339 (Fla. 1989)). Secretary
Detzner is a state officer. See § 20.10(1), Fla. Stat. (2018) (“The head of the Department
of State is the Secretary of State.”). Florida law is clear that the Secretary has the
2. Amendment 9 bundles a proposal to prohibit oil and natural gas drilling on
lands beneath specified state waters with another proposal that prohibits vaping in
enclosed indoor workplaces.
3. Amendment 11 bundles a proposal to eliminate language authorizing the
regulation of real property ownership, inheritance, disposition, or possession by aliens
ineligible for citizenship with a proposal deleting a provision that amendment of a
criminal statute will not affect prosecution or penalties for a crime committed before the
amendment (while retaining a provision allowing prosecution of a crime committed
before the repeal of a criminal statute), and with a proposal that deletes language
regarding the development of high speed ground transportation.
4. We review a circuit court’s decision on a petition for writ of quo warranto for
abuse of discretion. See Topps v. State, 865 So. 2d 1253, 1257 (Fla. 2004) (“Since the
nature of an extraordinary writ is not of absolute right, the granting of such writ lies
within the discretion of the court.”).
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authority and duty to place proposed amendments on the ballot. See § 101.161(2), Fla.
Stat. (2018) (directing the Secretary to give each proposed amendment a ballot number
and furnish the amendments to Florida’s supervisors of elections); art. XI, §§ 2(c), 5(a),
Fla. Const. (directing the Constitution Revision Commission (“CRC”) to furnish its
proposed amendments to the Secretary and the Secretary to deliver the proposed
amendments to supervisors of elections).
Appellees do not assert or attempt to argue in the petition that Secretary Detzner
improperly exercised his power or right to assign ballot positions to the challenged CRC
revisions. Rather, the petition expressly concedes, consistent with Florida law, that the
Secretary possessed the authority to take such action. The petition states that “[Secretary
Detzner] has the power and duty to place proposals to amend the constitution on the 2018
general election ballot and to certify the results of elections.” Appellees do not
demonstrate or even allege that Secretary Detzner exceeded his authority to assign ballot
position to the revisions. The petition therefore fails to assert a proper basis for quo
warranto relief. See Whiley v. Scott, 79 So. 3d 702, 707 (Fla. 2011) (“The writ [of quo
warranto] is the proper means for inquiring into whether a particular individual has
improperly exercised a power or right derived from the State.”). The petition instead
challenges the merits of the proposed amendments themselves, which is properly decided
on a complaint for declaratory and injunctive relief. Accordingly, we hold that the circuit
court abused its discretion in granting the petition because the standard for obtaining quo
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warranto relief has not been satisfied.
Moreover, the circuit court was incorrect in finding any deficiency in the proposals
or ballot summaries on the merits.5
The circuit court found the ballot language of Amendments 7, 9, and 11 to be
defective because each of those amendments bundled together separate and unrelated
proposals. The court held that such bundling violates section 101.161(1), Florida
Statutes, and potentially deprives voters of their First Amendment right to vote on
independent proposals. We rejected similar arguments regarding “bundling” in County of
Volusia v. Detzner, 43 Fla. L. Weekly S355 (Fla. Sept. 7, 2018), and reject the circuit
court’s contrary conclusions in this case. Unlike proposed amendments that originate
through initiative petitions, amendments proposed by the CRC are not bound by the
single-subject rule limiting amendments to one subject. Charter Review Comm’n of
Orange Cty. v. Scott, 647 So. 2d 835, 836-37 (Fla. 1994). The CRC’s proposed
amendments, may, and often do, combine several subjects “because [the CRC’s] process
embodies adequate safeguards to protect against logrolling and deception.” Id. at 837.
CRC revisions containing bundled proposals have previously been placed on the ballot by
5. We review the issue of whether a proposed constitutional amendment is
defective de novo. Armstrong v. Harris, 773 So. 2d 7, 11 (Fla. 2000).
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the Secretary.6 Moreover, the Florida Constitution expressly authorizes bundling, as it
gives the CRC authority to revise the entire constitution or any part of it. See art. XI, §
2(c), Fla. Const. The power to amend the whole constitution in one proposal necessarily
includes the lesser power to amend parts of the constitution in one proposal.
Nor does the bundling of multiple, unrelated measures violate section 101.161(1),
Florida Statutes. The statute provides that “the word ‘yes’ and also . . . the word ‘no’ ”
shall follow the ballot summary of each amendment, and that the words “be styled in
such a manner that a ‘yes’ vote will indicate approval of the proposal and a ‘no’ vote will
indicate rejection.” § 101.161(1). The circuit court held that the bundling of separate,
unrelated measures in a single ballot question prevents voters from “reasonably
answer[ing] the statutorily required yes or no question.” Anstead, No. 2018-CA-1925,
slip op. at 5. Again, we disagree.
It is evident that a vote of either yes or no corresponding to the ballot summary of a
proposed amendment is a vote to approve or reject the entire constitutional amendment—
including all of its subjects. See § 101.161(1). The fact that each proposed amendment
contains multiple independent measures covering different subjects does not prevent
compliance with the statute. Section 101.161(1) clearly allows multi-subject revisions,
6. The 1998 CRC proposed nine ballot amendments that bundled thirty-three
independent proposals. Commission Sends Nine Amendments to Ballot, Fla. Const.
Revision Commission, Mar./Apr. 1998, at 1, http://fall.fsulawrc.com/crc/news/mar98.pdf.
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where a “yes” vote indicates approval and a “no” vote indicates rejection of the whole
package.
The circuit court also addressed Appellees’ First Amendment argument and
determined that the bundling of proposals prevents voters from voting yes or no “without
potentially being deprived of their First Amendment constitutional right to cast a
meaningful vote on each independent and unrelated proposal.” Anstead, No. 2018-CA-
1925, slip op. at 5. However, neither Appellees nor the circuit court supply any analysis
in support of the bald assertion of a potential constitutional violation. Appellees merely
assert that they have a right to vote for a proposition without voting against an unrelated
proposition, a novel theory with no apparent support in the law. Because Appellees have
not demonstrated the violation of any First Amendment right, we conclude that the circuit
court erred to the extent that it found that the bundling of amendments implicates the
First Amendment.
Finally, the circuit court also concluded that Amendment 11’s ballot language was
defective because it would mislead voters by failing to inform them of the effect and
consequences of their vote. We disagree with this conclusion as well. The summary
accurately describes the effect of Amendment 11’s approval—the removal of
discriminatory language in the constitution regarding real property rights. The
amendment would delete the state’s alien land law, a short provision authorizing the
Legislature to regulate or prohibit the ownership, inheritance, disposition, or possession
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of real property by aliens ineligible for citizenship as an exception to constitutional
language providing that all “natural persons” have “inalienable rights” to “acquire,
possess and protect property.” The summary states that the amendment would
“[r]emove[] discriminatory language related to real property rights.” This is an accurate
description of what the proposed amendment will do, consistent with the requirement that
ballot language accurately represent the main legal effect and ramifications of a proposed
amendment. See Armstrong, 773 So. 2d at 12; Wadhams v. Bd. of Cty. Comm’rs, 567 So.
2d 414, 417-18 (Fla. 1990). In other words, the summary clearly communicates what it is
that voters are being asked to approve or reject, and Florida law does not require that it do
more than that. See Evans v. Firestone, 457 So. 2d 1351, 1355 (Fla. 1984) (explaining
that the ballot summary should tell the voter “the legal effect of the amendment, and no
more”); see also Askew v. Firestone, 421 So. 2d 151, 155 (Fla. 1982) (stating that the
ballot summary must “advise the voter sufficiently to enable him intelligently to cast his
ballot” (quoting Hill v. Milander, 72 So. d 796, 798 (Fla. 1954))); cf. Fla. Educ. Ass’n v.
Fla. Dep’t of State, 48 So. 3d 694, 702 (Fla. 2010) (upholding proposed amendment and
concluding that it was not misleading where the ballot summary did not disclose the
amendment’s specific financial impact on class size funding).
For the foregoing reasons, we hold that the circuit court erred in granting the
petition for writ of quo warranto because the standard for obtaining relief was not met.
We further hold the proposed amendments are not defective for bundling independent
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and unrelated measures. Finally, we hold the ballot language of Amendment 11 does not
mislead voters with respect to the amendment’s legal effect. Accordingly, we reverse the
decision of the circuit court and order that Amendments 7, 9, and 11 appear on the ballot
for the November 2018 general election. No motion for rehearing will be allowed, and
the mandate shall issue immediately.
It is so ordered.
CANADY, C.J., and POLSTON, LABARGA, and LAWSON, JJ., concur.
PARIENTE, J., concurs in result with an opinion, in which LEWIS and QUINCE, JJ.,
concur.
PARIENTE, J., concurring in result.
Voters beware! When amending our Florida Constitution, voters should not be
forced to vote “yes” on a proposal they disfavor in order to also vote “yes” on a proposal
they support because of how the Constitution Revision Commission (CRC) has
unilaterally decided to bundle multiple, independent and unrelated proposals. While I
concur in result because I agree with my colleagues that Petitioners fail to present a
proper claim for issuance of a writ of quo warranto, I write separately to emphasize the
obvious dangers of logrolling—combining popular and unpopular proposals into a single
proposal—even by the CRC.
I also respectfully disagree that the process that occurred with this CRC provided
“adequate safeguards to protect against logrolling.” Majority op. at 4 (quoting Charter
Review Comm’n of Orange Cty. v. Scott, 647 So. 2d 835, 837 (Fla. 1994)). Logrolling
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occurs when proposals that are attractive to one group of voters are intentionally
combined with proposals that may be unpopular to the same group of voters in order to
secure approval of the unpopular proposal. Advisory Op. to the Att’y Gen.—Save Our
Everglades, 636 So. 2d 1336, 1339 (Fla. 1994). Logrolling can also be used to mask a
controversial or unpopular proposal because it is more difficult to accurately explain
multiple, independent and unrelated proposals in a single ballot title and 75-word
summary. Advisory Op. to the Att’y Gen. re Right of Citizens to Choose Health Care
Providers, 705 So. 2d 563, 566 (Fla. 1998). For these reasons, I would conclude that the
CRC improperly bundled multiple, independent and unrelated proposals.
The per curiam opinion’s justification for allowing the CRC to employ this type of
bundling is that the CRC’s process embodies “adequate safeguards to protect against
logrolling and deception.” Majority op. at 4 (quoting Scott, 647 So. 2d at 837).7
However, as CRC Commissioner Roberto Martinez, one of this Court’s three appointees,
explained, the safeguards envisioned by the per curiam opinion do not exist. First, the
CRC’s legal staff provided no guidance with respect to the bundling:
7. The per curiam opinion’s reliance on the actions of the 1998 CRC is also
misplaced. While that CRC did bundle multiple proposals, it took great care to ensure
that the bundled amendments all dealt with similar subjects and were bundled
thematically. For example, Revision 3 dealt with the “Selection of Judges and Funding
of State Courts,” Revision 5 dealt with “Ballot Access, Public Campaign Financing, and
Election Process Revisions,” and Revision 4 dealt with “Restructuring the State Cabinet.”
Commission Sends Nine Amendments to Ballot, Fla. Const. Revision Comm’n, Mar./Apr.
1998, at 5-6, http://fall.fsulawrc.com/crc/news/mar98.pdf.
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Now, we have the advice of an excellent staff, and the Chair also went
out and hired a hall of fame group of legal experts, and each one of those
experts passed on the legality of the wording of each title and on the legality
of the wording of each ballot summary. And there is legal guidance.
. . . The legal experts were not asked to pass on the legality of the grouping,
because there is no legal standard for the grouping. So what the Style and
Drafting Committee did is they grouped different proposals together.
Now, according to Rule 5.4(2) of this Commission, of the CRC, the
Style and Drafting was supposed to group related proposals, related
proposals. You may recall a couple of weeks ago we had a debate on
germanity. And I don’t need to rehash that debate, but the question can be
fairly asked is, are these different proposals, are they related.
Const. Revision Comm’n 2017-2018, Transcript, at 68-69 (Apr. 16, 2018)
http://www.flcrc.gov/Meetings/Transcripts.html (emphasis added).
Second, the CRC’s public hearings also provide no additional safeguards with
respect to the bundling because the Style and Drafting Committee bundled the proposals
after the CRC concluded its public hearings:
We have had at the CRC a process with regards to each individual
proposed amendment. It’s gone through committees, it’s gone through
debate, it’s gone through public hearing.
Groupings not once went through any public hearings, not a single
time. We had public hearings on individual proposals before the committee
meetings. We had public hearings on the proposals after the committee
meetings. At no time have we had any public hearing on any of the
groupings. The public has not had an opportunity to tell us whether or not
they understand the grouping. There has been no process with regards to
having a public hearing on whether or not the grouping, in fact, complies
with the purpose of the—what we asked our legal experts to do, which is
does the grouping fairly inform the voters as to what it is that they’re voting
for or does it mislead.
Id. at 71-72.
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The more complex an amendment is and the more independent and unrelated the
proposals are, the more difficult it will be for voters to ascertain its true purpose and
effect on Election Day. Rather than being able to vote up or down on each individual
proposal based on its merits, voters will be forced to weigh the costs and benefits of each
group of proposals.
For example, the ballot summary for Amendment 7 states:
Grants mandatory payment of death benefits and waiver of certain
educational expenses to qualifying survivors of certain first responders and
military members who die performing official duties. Requires
supermajority votes by university trustees and state university system board
of governors to raise or impose all legislatively authorized fees if law
requires approval by those bodies. Establishes existing state college system
as constitutional entity; provides governance structure.
This amendment bundles together (1) a proposal to require university boards of trustees
and the university board of governors to approve any proposal or action to raise, impose,
or authorize any fee by a designated minimum number of members; (2) a proposal to
create a single state college system comprised of all public community and state colleges;
and (3) a proposal to provide death benefits for survivors of first responders and military
members. It would seem self-evident that death benefits for survivors of first responders
and military members, however laudable, is completely unrelated to amendments dealing
with the university system, which may be controversial.
Additionally, Amendment 9 bundles together a proposal to prohibit drilling for
exploration or extraction of oil or natural gas in certain lands beneath all state waters with
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a proposal to prohibit the use of vapor-generating electronic devices in enclosed indoor
workspaces—two independent and unrelated subjects about which voters may feel
strongly. However, the bundled amendment requires voters to either agree with both
proposals or reject both. While both proposals deal in an attenuated manner with
improving the environment, they do so in totally different and unrelated ways.
Bundling multiple, independent and unrelated proposals in this way makes the task
of voting significantly more difficult for Florida’s citizens, requiring them to decide—in
addition to weighing the independent merits of each proposal—whether voting in favor of
one proposal they approve of is worth also approving a proposal they do not favor.
Voters should not be required to exercise their all-important authority to amend the
constitution under these restrictions.
As I explained in relation to another CRC proposed amendment challenged before
this Court:
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.
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
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[their] local schools.” CRC 2017-2018, transcript of meeting at 163 (Apr.
16, 2018).
Detzner v. League of Women Voters, No. SC18-1368, slip op. at 19-20 (Fla. Oct. 15,
2018) (Pariente, J., concurring). Justice Lewis likewise explained:
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.”).
Id. at 25 (Lewis, J., concurring).
The bottom line is that the ultimate authority to amend the constitution rests with
the voters in this State. By bundling multiple, independent and unrelated proposals,
combining “popular” amendments with controversial amendments on the ballot, the CRC
makes it more difficult for voters to intelligently exercise their right to vote. Indeed, in
some cases, bundling prohibits voters from exercising this right altogether because it
forces them to reject proposals they would otherwise approve because they disapprove of
another unrelated controversial proposal. However, I agree that the petition for quo
warranto was the improper vehicle to bring this action against the Secretary of State. For
these reasons, I concur in result.
LEWIS and QUINCE, JJ., concur.
Certified Judgments of Trial Courts in and for Leon County – Karen Gievers,
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Judge - Case No. 372018CA001925XXXXXX – An Appeal from the District Court of
Appeal, First District, Case No. 1D18-3804
Pamela Jo Bondi, Attorney General, Amit Agarwal, Solicitor General, Edward M.
Wenger, Chief Deputy Solicitor General, and Jordan E. Pratt, Deputy Solicitor General,
Tallahassee, Florida; and Bradley R. McVay, Interim General Counsel, and Ashley E.
Davis, Deputy General Counsel, Tallahassee, Florida,
for Appellant Florida Secretary of State
Joseph W. Little, Gainesville, Florida,
for Appellees
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