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Judge tosses Florida Legislature-backed health care amendment off ballot

TALLAHASSEE — Calling the wording of a Republican-backed constitutional amendment on health care "manifestly misleading," a Circuit Court judge in Leon County has tossed it off the November ballot.

The proposal had been drafted and put forward by the GOP-led state Legislature as a counter to the new federal health care plan. It would prohibit the state from participating in any health insurance exchange that compels people to buy insurance.

State law requires ballot summaries to be clear and accurate.

Circuit Court Judge James Shelfer said a proposed ballot summary for the amendment contains several phrases that are political and lists issues that are not addressed in the proposal.

The first sentence of the summary says the amendment would "ensure access to health care services without waiting lists, protect the doctor-patient relationship, (and) guard against mandates that don't work."

Shelfer said the amendment does not guarantee any of those things.

"Someone voting on the amendment, reading those introductory statements would have a false understanding of what they were voting on," he said in a ruling from the bench.

Critics and even one of its proponents acknowledged at the time that the amendment likely would not affect the national law because the U.S. Constitution also contains a "supremacy clause" that largely allows federal laws to trump state statutes. But it could have prohibited Florida from enacting a Massachusetts-style health care system.

This was the third legislative proposal declared misleading by judges and knocked off the November ballot. Other proposals dealt with the Legislature's power to draw political boundaries and to give property tax breaks to people with second homes and businesses.

The ruling likely will be appealed.

Politically, it was a loss for the GOP. The amendment echoed tea party anger and anxiety over the Obama administration's actions, and would have been a draw for conservative voters in a highly contested off-year election.

The challenge came from Democratic election attorney Mark Herron on behalf of four residents. He said the phrases cited by the judge "have no other purpose than to market" the amendment.

"They constitute political rhetoric designed to provoke an emotional response," he said. "These phrases constitute editorial comment and are inappropriate for inclusion in the ballot summary."

Russell Kent, a lawyer for the Florida Attorney General's Office, argued that the case is a "political disagreement."

"This is an attempt to keep the issue from the voters by any means necessary," he said.

Rep. Scott Plakon, a Republican from Longwood, sponsored the proposed amendment in the House and was in the courthouse Thursday for the proceedings.

Afterward, he called Shelfer, who was appointed to the Leon County Court by Gov. Jeb Bush and elevated to the Circuit Court by Gov. Charlie Crist, an activist judge.

"It seemed to me that he went pretty far out there in his ruling," Plakon said. "And I think he basically said that the Supreme Court needs to decide this. So, I'm pretty sure that this will be appealed to the Supreme Court."

Attorney General Bill McCollum, a GOP candidate for governor, said he wasn't sure at this point whether his office would appeal, but one of his deputies who is more closely involved in the case said such action is likely.

"I'm very disappointed," McCollum said, because he wanted it as part of his attempt to "make it very clear that we do not approve of the health/Obamacare bill."

McCollum is involved in a federal law suit challenging the legitimacy of the health care plan. He said Shelfer's ruling "makes the lawsuit even more important, and we are going to succeed in that lawsuit," which claims the health care reform is unconstitutional.

The federal suit will be heard in September, and he expects the court to "throw out that entire law," McCollum said.

After the ruling, lawyers for the Legislature asked Shelfer to simply substitute the text of the amendment in place of the summary.

But the judge refused, saying to do so would substitute his judgment for that of the Legislature and there is no binding precedent that would allow him to make such a move.

Information from the News Service of Florida was included in this report. Lee Logan can be reached at

Amendment in full

Here is the full text of the disputed amendment:

Proposing an amendment to the State Constitution to ensure access to health care services without waiting lists, protect the doctor-patient relationship, guard against mandates that don't work, prohibit laws or rules from compelling any person, employer, or health care provider to participate in any health care system; permit a person or an employer to purchase lawful health care services directly from a health care provider; permit a health care provider to accept direct payment from a person or an employer for lawful health care services; exempt persons, employers, and health care providers from penalties and fines for paying directly or accepting direct payment for lawful health care services; and permit the purchase or sale of health insurance in private health care systems. Specifies that the amendment does not affect which health care services a health care provider is required to perform or provide; affect which health care services are permitted by law; prohibit care provided pursuant to general law relating to workers' compensation; affect laws or rules in effect as of March 1, 2010; affect the terms or conditions of any health care system to the extent that those terms and conditions do not have the effect of punishing a person or an employer for paying directly for lawful health care services or a health care provider for accepting direct payment from a person or an employer for lawful health care services; or affect any general law passed by two-thirds vote of the membership of each house of the Legislature, passed after the effective date of the amendment, provided such law states with specificity the public necessity justifying the exceptions from the provisions of the amendment. The amendment expressly provides that it may not be construed to prohibit negotiated provisions in insurance contracts, network agreements, or other provider agreements contractually limiting copayments, coinsurance, deductibles, or other patient charges.

Judge tosses Florida Legislature-backed health care amendment off ballot 07/29/10 [Last modified: Friday, July 30, 2010 7:04am]
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