Monday, November 19, 2018

Florida justices ask pointed questions during hearing on Amendment 8

Florida Supreme Court justices poked holes in both sides of an ongoing debate whether to place Amendment 8 back on the November ballot during a 45-minute hearing Wednesday afternoon.

They didn't issue a ruling, but one is expected soon.

Leon County Judge John Cooper removed the controversial measure two weeks ago, finding its title and summary misleading. The Secretary of State's office appealed that decision, calling the item clear and straightforward.

The case went straight to the Supreme Court.

Related coverage: Judge orders Amendment 8 be removed from Florida ballot 

Deputy solicitor general Daniel Bell made the state's case first. He told the court that its role is to determine whether the ballot language accurately and clearly conveys the chief purpose of the proposal.

He said it does.

In short order, Justice Barbara Pariente began prodding that contention.

She said her problem with the proposal was whether it establishes its true and clear meaning for voters.

"I've looked at this," Pariente said. "I keep on going back and forth between the title and the actual amendment to see how a voter would really know."

She noted that the amendment appears to authorize the transfer of control over certain public schools to "some other entity" that isn't defined.

"Why is that not misleading as to the chief purpose of that part of the ballot summary?" Pariente asked.

Bell said the proposal paves the way for future changes to the authorization of public schools, but remained silent on the specifics because no actual law change is included.

He suggested the amendment would "create space" for the Legislature to operate. As to whether the ballot language is clear, Bell said, "We would argue it is."

Justice R. Fred Lewis pushed on that point.

"Tell me the words that demonstrate the chief purpose," Lewis said.

Bell recited the wording, "permits the state to operate, control, and supervise public schools not established by the school board."

What does that mean? Lewis asked. "Do we know from this ballot?"

Bell repeated that the details are not specific, but insisted that the language in the revision is clear.

When his time elapsed, League of Women Voters lawyer Ron Meyer hit the same points as the inquiring justices. He argued the law requires constitutional amendment titles and summaries to be clear and unambiguous, yet the wording in Amendment 8 is anything but.

The proposal aims to create a new category of public schools established by the state rather than the school board, Meyer said, yet it does nothing to explain that to the voter.

Chief Justice Charles Canady said he had trouble with Meyer's arguments.

"Wouldn't the voter who is examining this summary understand that point" that school board authority is being changed, Canady asked.  "The Legislature might not take it away from them, but it's opening up something for the state that is not available."

Meyer responded that the proposal did not clarify what might be opened up. Canady asked whether the plaintiff's problem was more with the actual policy being promoted than with the title and summary.

"I'm struggling to understand why they aren't going to get the main point here," the chief justice said.

Meyer said it's unclear even what the "state" is, and argued that voters should not be asked to guess. He further said that his argument is not against the merits of the proposal, or even against the bundling of three somewhat unrelated education initiatives.

The point, he said, is that two of the subjects — school board term limits and civics education — are clearly and simply explained, while the third and most consequential one — revision of school board powers and authority — is camouflaged to obscure its meaning and effect.

Justice Al Lawson asked whether reordering the wording so the board powers were more prominent would resolve the concern. Meyer said that would not suffice.

Justice Peggy Quince rounded out the questioning by saying she remained troubled with the issue of how schools are established and who does so. If the constitution empowers school boards with that role, Quince said, then the meaning of language granting power to the state for schools not established by boards is troublesome.

The point, Meyer answered, is that "no one understands."

In a five-minute response, Bell agreed that boards currently have the sole power to establish public schools. But, he added, the ballot language is clear that the goal is to change that.

He further suggested that any changes would be forward looking, and not alter the status of existing schools.

Justice Jorge Labarga said if that's so clear, then the language of the title and summary should be more forthcoming.

"Would it be not clear if the proposed amendment would say, From this day on the Legislature would be permitted to establish schools? That would have made it easier, wouldn't it?" Labarga said.

"I would submit the ballot language as written is accurate," Bell answered.

If the objective is to let the voters know what they're voting on, Labarga responded, "why all the word-smithing? Why not just come out and say it?"

The time expired shortly after.

In a separate case, Leon County Judge Karen Gievers removed Amendment 8 from consideration of a challenge to six proposed amendments over bundling of items.

"It didn't make a lot of sense for us to spend a lot of time here on issues that are being heard across town," Gievers explained.

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