Utility's lawyer says anti-Amendment 1 lawsuit is based on 'false premise'
Lawyers for the political committee sponsored by the state's largest electric utilities argued in court documents filed Friday that the attempt to get the Florida Supreme Court to invalidate the proposed Amendment 1 on the Nov. 8 ballot is based on a "false premise" and an effort "to garner more media attention in the days before the election."
The motion, filed by Consumers for Smart Solar, asks the court to reject the argument by solar opponents that recent claims by a researcher working with amendment proponents is proof that the amendment is a fraudulent attempt to deceive voters.
The article by the Miami Herald/Tampa Bay Times included links to a leaked audio recording of Sal Nuzzo, the policy director of the James Madison Institute, who 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. He also claimed that Amendment 1 was an attempt at "political jiu jitzu," designed to "negate" the efforts of the solar advocates to expand rooftop solar in Florida.
The Florida Solar Energy Industries Association and Floridians for Solar Choice, the pro-solar political committee opposing the amendment, filed two lawsuits Wednesday asking the court to reopen the case involving the the ballot language claiming that proponents “withheld relevant and material information as to the objective and intended purpose of the amendment, and thereby misled this Court (and is now misleading the public) as to the adequacy of the ballot title and summary presented to the voters.”
But in the response filed Friday, Raoul G. Cantero, lawyer for the utility-backed political committee sponsoring the amendment, argues the lawsuit "is based on the false premise that a ballot summary is misleading if it does not state the political motivations of the sponsor,'' said "But this Court has repeatedly held that a ballot summary cannot address the sponsor’s political motivations."
Cantero cited the Miami Herald/Tampa Bay Times article used by the amendment opponents: "The only new information – a newspaper article alleging that “the sponsors of Amendment 1 ‘attempted to deceive voters’” (Mot. at 2) – is not only unsubstantiated but directly contradicted by the Sponsor’s statements in the very same article. In earlier filings with the Court, the Sponsor made its motivations clear: Amendment 1 is designed to protect the use of solar energy in Florida, but would ensure that government can manage its growth to protect the broader public interest."
Cantero, a former Supreme Court justice, attempts to do in court documents what an Amendment 1 spokesperson 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 writes.
"Yet, nothing in the articles indicates that Mr. Nuzzo speaks for Consumers for Smart Solar, other than assertions of guilt by association. To the contrary, the articles quote representatives of both Consumers for Smart Solar and the James Madison Institute denying that Mr. Nuzzo or his organization had been hired, funded, or asked to do anything by the Sponsor in the conception, development or drafting of Amendment 1 (Consumers for Smart Solar is prepared to submit affidavits to that effect if necessary). Mr. Nuzzo may have his own motivations for supporting Amendment 1, but he is not the Sponsor.
"And it is, frankly, reckless to accuse Consumers for Smart Solar of “fraud or other misconduct on the Court” based on newspaper articles citing the statements of a third party."
Cantero quotes Justice Barbara Pariente, whose strongly-worded dissent called the amendment a "wolf in sheep's clothing" for its attempt to mislead voters into thinking it is a pro-solar initiative and refers to her comments that the ballot summary must not include political motivations.
"To ascribe one primary motive to advocates of a measure, and then require that this motive be conveyed in a seventy-five word ballot summary, is impractical if not impossible,'' Pariente wrote. "I conclude that the task of informing the public as to the possible motivations behind the proposed amendment and its practical effects must fall on the proponents and opponents of the measure."
Cantero also argues that proponents of the amendment fail to specify the fraud that they claim. "The Motion alleges no facts specifying a fraud by the Sponsor; it only attaches newspaper articles citing statements by an individual who does not speak for the Sponsor."
"In truth, this Motion is an attempt to use the judicial process to garner more media attention in the days before the election. The articles attached to the Motion were published more than two weeks before the Motion was filed; and the Motion was filed less than a week before the election, in conjunction with a press conference announcing it."
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