Update: Court rejects request to invalidate Amendment 1
The last-minute attempt by solar advocates to invalidate a utility-backed amendment on the November ballot was rejected by the Florida Supreme Court on Friday.
In two, one-sentence rulings, the court voted 6-1 to reject the lawsuits filed by the Florida Solar Energy Industries Association and Floridians for Solar Choice asking the court to reopen the case involving the ballot language and rule that it was intentionally misleading, in violation of the Florida Constitution. Justice Barbara Pariente dissented.
Citing a report by the Miami Herald/Tampa Bay Times about a leaked audio in which the policy director at a Tallahassee think tank supported by the utility industry called Amendment 1 an “act of political jiu-jitzu” that intended to portray the amendment as a pro-solar initiative, the opponents said the recording proved what they had suspected: that the utilities intentionally attempted to trick voters.
The lawsuit claimed the utility companies “withheld relevant and material information as to the objective and intended purpose of the amendment" and therefore misled the court and voters from realizing the true intent was to limit rooftop solar expansion in Florida.
However, in a counter-motion filed early Friday, the proponents of Amendment 1, Consumers for Smart Solar, urged the court to reject the lawsuit, saying it was based on a "false premise."
The court agreed and also rejected a second lawsuit asking for an expedited ruling as moot. Florida law requires that the Supreme Court review all ballot initiatives to determine whether the language is fair and not misleading. Three of the four justices who voted for the ballot language — Chief Justice Jorge Labarga, Ricky Polston and Charles Canady — are all on the ballot for a merit retention vote.
The court initially approved the amendment language on a 4-3 vote in March. In a strongly worded dissent, Pariente disagreed. , calling the ballot language “a wolf in sheep’s clothing” because it is “masquerading as a pro-solar energy initiative.”
In opposing the lawsuit, Raoul G. Cantero, lawyer for the utility-backed political committee and a former Supreme Court justice, argued that the only new information to support the claim the amendment was deceptive was the Miami Herald/Tampa Bay Times article. He said the allegation was "directly contradicted by the Sponsor’s statements in the very same article."
“We are not surprised the Florida Supreme Court dismissed our opponents’ frivolous motions, which were only filed to garner attention from the media,'' said Sarah Bascom, spokesperson for Consumers for Smart Solar. "This was nothing more than a political stunt to deter voters’ attention in the final days of the election.”
Opponents of the amendment said they were disappointed.
“We wanted to give the Court an opportunity to clean up the mess they have made by approving this amendment for the ballot,'' said Stephen Smith, of Floridians for Solar Choice. "Now it’s game on: We have a solar uprising happening in the Sunshine State. We ask everyone to ‘Vote No On 1’ and we look forward to Tuesday, when we will kill this once and for all.”
Susan Glickman of the Florida chapter of the Southern Alliance for Clean Energy, part of the coalition that filed the lawsuit said "voters are starting to realize that the big utility companies are spending millions to mislead them to vote for an amendment that will make it more costly to generate solar power.
“Voters should be mad, and take every opportunity to tell people who have yet to vote ‘no’ on Amendment 1,’’ she said.
In the leaked audio recording, Sal Nuzzo, a vice president at the James Madison Institute in Tallahassee, told an audience on Oct. 2 that JMI conducted research on behalf of Consumers for Smart Solar in an attempt to establish the foundation for the utility companies’ argument that solar users were subsidizing non-solar users.
The amendment includes that says that people without rooftop solar panels should not be subsidizing those with rooftop solar. Opponents say this is the legal argument the utilities industry has used in other states to reduce tax credits for solar, or impose new fees on solar users.
Cantero attempted to do in court documents what Bascom has done in written statements: distance the proponents from Nuzzo.
"Instead of engaging in a policy debate, the Motion attaches newspaper articles that cite statements by someone named Sal Nuzzo, of the James Madison Institute, about the alleged political motivations behind Amendment 1,'' he wrote.
Nuzzo’s boss, Bob McClure, the president of JMI, said he “misspoke” when he made the claims.