By Lynn Hatter
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Tallahassee, FL – The legislature is looking to reduce the Supreme Courts influence when it comes to constitutional amendments. That follows lawmakers seeking four out of their last five constitutional proposals kicked off the ballot. As Lynn Hatter reports, the Senate took up two bills aimed at giving defeated amendment proposals a second chance to go before voters.
Last year, the Florida legislature put six constitutional amendment proposals on the November ballot. They dealt with everything from eliminating public campaign financing, to changing the state's class size rules. Groups opposed to the measures sued, saying the ballot summaries were misleading, and in three of the five cases, the courts agreed, and struck the amendments from the ballot. One of the legislature's rejected proposals would have barred any law that requires a person to buy health insurance. After the court declared it confusing and misleading, Republican Representative Scott Plakon of Longwood, compared the courts action to a shooting gallery.
"As fast as we pass them the courts are finding various nuance and technical reasons to thwart the will of the people as expressed through the 160 of us."
Lawmakers have been complaining for years that the courts have too much authority to remove constitutional amendment proposals the legislature placed on the ballot. House Speaker Dean Cannon, who's pushing a proposal to split the Supreme Court in two, has said the judicial branch oversteps its authority when it removes those amendments.
"Just because the Supreme Court gives itself jurisdiction over a piece of legislation, doesn't necessarily mean the court has the proper authority to remove that legislation. I firmly believe that allowing the court to remove legislatively proposed amendments from the ballot denies the people their right to amend their constitution. I believe the need for ballot summary language is critical. But I also believe that this is just one of many components of comprehensive court reform that we need and should explore over the next two years.
Cannon's expressed goals are coming in a proposal by Senator Miguel Diaz de la Portilla. During the Senate's Rules Subcommittee Monday, he outlined the section dealing directly with the courts and constitutional amendments.
"If the court finds the language defective and further appeals are declined, abandoned or exhausted, the attorney general shall promptly revise the defective language identified by the court. The Department of State should furnish a designating number and provide the revised language to the supervisors of elections for placement of the ballot. Finally, the bill states that a defect in the ballot title or summary language is not grounds to remove the proposed amendment from the ballot."
Critics of the bill like Senator Arthenia Joyner say it strips the courts of their authority.
"It takes away from the court the final say in curing a defective title. And I want to know why is it that we're removing this from the province of the judiciary and giving it to the Attorney General?"
Diaz de la Portilla says just because the language has been changed doesn't preclude the amendment from being challenged again. But Brian Pitts, with the group Justice to Jesus, argues the attorney general doesn't have the authority to change a document created by the legislature, so any changes have to go back to that body. He also says the proposal violates Florida's constitution.
"I understand it's difficult, but you still can't do it with the attorney general. Nice try though. And then it says, the defect will not be removed from the ballot. Wait a minute, the courts have already ruled that that is the basis constitutionally that we can take it from the ballot. So now you're going to fight with the courts where in hundreds of opinions they've already said yes we can take it off if the language is confusing'."
The proposal sets up a constitutional question. If the legislature passes a bill that regulates what a co-equal branch of government can and cannot do, and that branch happens to be the judiciary, how does that conflict get resolved? Dan Gelber is a former state Senator and Democratic Candidate for State Attorney General. He's also a lawyer.
"No matter what the legislature tries to do, it's very possible the Supreme Court could simply say, we have the authority, constitutionally, to make sure your initiatives and amendments are fair to the citizens and provide adequate notice and are accurate."
Gelber says the proposal is an attempt to subvert the court and get back at it for not siding with the legislature.
"The legislature is in the midst of a hissy fit. They're upset that the mischief they tried to perpetuate during the last election cycle was thwarted by the supreme court. So they're now doing loads of things to try to emasculate the court, de-fang the court, to hurt the court, to literally abolish the court- lower their pay, make it harder for them to be retained, all of those things, and this is one of those things."
A similar proposal by Senator David Simmons would refer those constitutional amendments to the secretary of state. The proposal is one of several looking to revise the way the court system operates.