Polk Law Blog

The Florida Supreme Court Case concerning Amendment 9 (Dept. of State v. Mangat), which attempts to make it impossible to require Floridians to purchase health insurance, is in full swing. Amendment 9 is a direct response to federal health care reform, but it is doubtful that Amendment 9 would have any effect on federal health care reform. Amendment 9 was proposed by the Florida legislature, as opposed to a citizen initiative.

The Amendment was removed from the ballot by a Circuit Court judge in Leon County at the end of July. The case was appealed directly to the Florida Supreme Court as a question of great public importance and is being handled on an expedited basis. As of Thursday, the Supreme Court received all the briefs and oral argument is set for August 18. A decision should be issued shortly thereafter, and it could easily go either way. 

At the trial court level, the argument focused on whether the summary that would appear on the ballot was misleading or not. Finding that it was, the trial court removed the amendment from the ballot. At trial, the State argued that the judge should have simply ordered that the text of the amendment itself appear on the ballot in place of the summary, because it did not have the offending language in it. The judge refused, stating that he did not feel he had the authority to speak for the legislature and rewrite the bill it passed to conform to the requirements necessary to appear on the ballot.

On appeal, the State is not trying to argue that the language is not misleading. Instead, the State is solely arguing that a judge has the authority to substitute the text of the amendment for the summary when the summary violates the law.

This one is a toss up. There are two primary competing Florida Supreme Court authorities.

The State relies on the case of ACLU of Florida v. Hood, Case No. SC04-1671 (Fla. 2004). In this case, the Florida Supreme Court struck  the ballot summary of an amendment that required parental consent for teens to have abortions. In lieu of the summary, the Court ordered that the entire text of the amendment appear on the ballot.

The plaintiffs who challenged the amendment rely foremost on the case of Smith v. American Airlines, 606 So. 2d 618 (Fla. 1992). In Smith, the Court held that it did not have the authority to rewrite ballot summaries.

The 2004 ACLU case would be controlling but for one little problem: the Court did not issue a published opinion or explain the reasons for its decision, or the effect on the Smith case. Now, the Supreme Court is going to have to clean up the mess. Does the Court have the authority to substitute the text of the amendment for the summary? Film at 11.

From a policy perspective, I think the people of Florida would be better served if judges do not have the authority to change what appears on the ballot. This would encourage amendment drafters to get it right the first time because they would not get a do-over in court, and prevent the court from having to get quite as involved in the political process of drafting legal text. It really is not all that hard to draft an accurate summary of what an amendment does. It’s when the amendment drafters try to use the ballot summary to lobby for the amendment that they get in trouble, and rightly so. Whether the Supreme Court has the legal authority to go that direction, I don’t know, but they’re going to tell us themselves shortly.

One interesting feature of the ACLU case that might distinguish it from this one is that the Amendment at issue there was very short and straightforward. In this case, the amendment is quite long and pretty involved.  If the Court isn’t looking to overturn itself and neatly reconcile ACLU v. Hood and Smith, it may find that a judge is permitted to substitute the text for the summary if the judge finds that the text is brief enough and easy enough to understand, but not if the amendment is lengthy and/or confusing. I’m not necessarily advocating this approach, just pointing out that the Court may go this way.

The briefs of the parties are available online for your reading pleasure.