- November 1, 2018
Here we are again. Every two years for the general election, Floridians face not only the choice of candidates but also the often confusing list of statewide constitutional amendments.
This time, thankfully, unlike in 2012 when there were 11 proposed amendments on the ballot, voters will find only three proposed constitutional amendments.
As always with constitutional amendments, our analysis this year begins with what we believe is the most important litmus test: Will the adoption of the amendment increase individual liberty, or will it take away or restrict your freedom?
Almost always, if the amendment lessens liberty, if it will reduce your freedom, we will recommend a “no” vote. It's as simple as that.
But there is also a second test to be applied when evaluating constitutional amendments: Is the proposed amendment appropriate for the state constitution? Or is the issue at hand more appropriately suited for the legislative process, where laws can be adopted and amended according to the mores and conditions prevailing at the time?
The classic example of an amendment that was and is totally inappropriate for the constitution came in 2002. Florida voters actually approved an amendment that prevents confining pregnant pigs in a cage or crate in which they are unable to turn around freely. Talk about an embarrassment. This is now etched in the Florida Constitution.
How do you gauge whether a proposed amendment is appropriate for the constitution? Use the U.S. Constitution as a framework. It primarily addresses the relationships between the three branches of government and sets up the boundaries in which they can operate. And it states our basic human rights — freedom of speech, religion, the right to protect ourselves.
Most proposed amendments that come before Florida voters are better suited for the Legislature. But because Florida has a system with a relatively low barrier to placing initiatives on the general-election ballot, many special interest groups use this mechanism to bypass the Legislature. They make the bet they can sway popular public opinion more easily than they can legislators, e.g. medical-marijuana sponsor John Morgan. They count on the electorate to vote emotionally, not intellectually.
And that is the biggest flaw with Florida's initiative system. Too many voters are unaware of the motivations behind the groups pushing specific amendments or the consequences likely to occur if the amendments are adopted.
Our hope, then, is to help you know more about this year's three amendments before you color in a bubble on your ballot.
ARTICLE X, SECTION 28
Water and Land Conservation: Dedicates funds to acquire and restore Florida conservation and recreation lands
Funds the Land Acquisition Trust Fund to acquire, restore, improve and manage conservation lands, including wetlands and forests; fish and wildlife habitat; lands protecting water resources and drinking water sources, including the Everglades, and the water quality of rivers, lakes, and streams; beaches and shores; outdoor recreational lands; working farms and ranches; and historic or geologic sites, by dedicating 33% of net revenues from the existing excise tax on documents for 20 years.
This amendment does not increase or decrease state revenues. The state revenue restricted to the purposes specified in the amendment is estimated to be $648 million in Fiscal Year 2015-16 and grows to $1.268 billion by the 20th year. Whether this results in any additional state expenditures depends upon future legislative actions and cannot be determined. Similarly, the impact on local government revenues, if any, cannot be determined. No additional local government costs are expected.
Talk about motherhood and apple pie. Who wouldn't vote “yes” for this?
Everyone is in favor of safe drinking water, beaches and preserving wildlife habit, rivers, snail darters and the like.
And the sponsors of this amendment, Florida's Water and Land Legacy Inc. and virtually every environmental group in Florida, have pitched their literature, predictably, to paint a dire situation that this amendment would correct. From the amendment sponsors' website:
“Because our elected leaders refused to adequately fund water and land conservation, citizens had to take matters into their own hands.”
“Since 2009, the Legislature has dramatically reduced funding for water and land protection, cutting key programs by more than 95%. Amendment 1 would ensure that water and land conservation projects are adequately funded — the funds cannot be diverted to other purposes — without increasing taxes ...
“The amendment gives Florida voters a direct opportunity to keep drinking water clean, protect our rivers, springs and beaches and restore natural treasures like the Everglades — without any increase in taxes.”
Don't be fooled. All of that is spin.
The truth is Florida taxpayers, thanks to the Legislature, are already doing what the proponents of this amendment want. They're just not doing it at the level they want. Last year, for instance, Florida spent 29% of Florida's doc stamp collections on all of the environmental items listed in this proposed amendment.
On top of that, ever since 2000, thanks to the Preservation 2000 and Florida Forever programs, Florida taxpayers have acquired and set aside 25% of Florida's landmass for all of the activities listed in the amendment. Florida has been a national leader in this regard and remains so.
What these environmental groups want voters to do is guarantee them their special, carved-out percentage of Florida's tax revenues for the next 20 years. All because they are unhappy that lawmakers are not spending as much as they want spent on the environment.
Consider this analogy: To guarantee 33% of the state's doc stamps be spent on environmental programs for the next 20 years is akin to forcing you to lock in a percentage of your take-home pay on, say, landscaping — regardless of what your family's needs might be.
This is bad governance.
Consider how Charles Bronson, Florida's former agriculture commissioner and a leading environmental preservationist, characterizes Amendment 1: “The state budget is comprised of a finite number of dollars, and guaranteeing through a binding constitutional amendment that a single component is exempt from having to compete for funding with all of the other pressing needs of the state ... puts everything but the favored component at a distinct disadvantage.”
Indeed, the Legislature's fiscal analysis notes that if Amendment 1 passes, one of the consequences “may result in reductions to existing programs funded by the (doc) tax, or in the replacement of those dollars with other state funds at a loss to other programs.”
Amendment 1 fails to pass our two litmus tests: If approved, it will reduce Floridians' liberty by locking in “earmark” spending at the expense of other needs. What's more, this is an issue that clearly should be handled at the legislative level.
ARTICLE X, SECTION 29
Use of Marijuana for Certain Medical Conditions
Allows the medical use of marijuana for individuals with debilitating diseases as determined by a licensed Florida physician. Allows caregivers to assist patients' medical use of marijuana. The Department of Health shall register and regulate centers that produce and distribute marijuana for medical purposes and shall issue identification cards to patients and caregivers. Applies only to Florida law. Does not authorize violations of federal law or any nonmedical use, possession or production of marijuana.
Increased costs from this amendment to state and local governments cannot be determined. There will be additional regulatory and enforcement activities associated with the production and sale of medical marijuana. Fees will offset at least a portion of the regulatory costs. While sales tax may apply to purchases, changes in revenue cannot reasonably be determined since the extent to which medical marijuana will be exempt from taxation is unclear without legislative or state administrative action.
In 2005, the late eminent economist, Milton Friedman, told Forbes magazine: “There is no logical basis for the prohibition of marijuana. ... It's absolutely disgraceful to think of picking up a 22-year-old for smoking pot. More disgraceful is the denial of marijuana for medical purposes.”
Now think of the fact nearly 25 states are already ahead of Florida adopting laws to permit medical marijuana use.
And let's add in this barometer of things to come: This past summer, one of the leading consultants in the beer distribution industry told his audience of distributors in one of his blogs: Get ready. The day is coming, soon, when marijuana will be legalized and regulated the same way beer is today.
The trends are gaining momentum.
And that's partly what “For the People” lawyer and medical-marijuana sponsor John Morgan is banking on with his Amendment 2. Floridians, he hopes, will roll with the tide.
So let's apply the litmus tests. On increasing personal freedom, this amendment passes the first threshold.
On the second test, however, it fails. Medical marijuana is not a constitutional issue. Some proponents may think smoking marijuana for medicinal or recreational purposes is a human right. But it is no more so than is smoking a cigarette.
The issue of medical marijuana is a statutory issue, best addressed in the Legislature. In fact, the Legislature in its most recent session began addressing the legalization of medical marijuana with the passage of the Compassionate Medical Cannabis Act of 2014. It allows the use of a low-THC, oral marijuana for epilepsy, cancer and ALS.
So the process has begun. And it should continue. But not with Amendment 2.
The amendment is seriously flawed, especially in its vagueness.
The language states medical marijuana can be used for nine different debilitating medical conditions, plus this: “other conditions for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for the patient.”
With that, if you have half of a rational brain, you're already thinking you've seen this movie before: “Remember the Pill Mills?” Talk about an open invitation for unscrupulous, sleazy people.
Another red flag: Parental consent is not required for a minor to obtain medical marijuana. And yet, school nurses can't dispense a Tylenol to a minor without parental consent.
These are just two of the flaws in the text of the amendment that should give voters pause — and sufficient reason to reject its adoption.
Floridians should be permitted greater options for the use of medical marijuana. But Amendment 2 isn't the right mechanism “for the people.”
ARTICLE V, SECTIONS 10, 11
Prospective Appointment of Certain Judicial Vacancies
Requiring the Governor to prospectively fill vacancies in a judicial office to which election for retention applies resulting from the justice's or judge's reaching the mandatory retirement age or failure to qualify for a retention election; and allowing prospective appointments if a justice or judge is not retained at an election. Currently, the Governor may not fill an expected vacancy until the current justice's or judge's term expires.
This amendment deserves constitutional status. It addresses a matter affecting the relationship between the executive and judicial branches of government.
At the same time, this proposed amendment, while presumably well intended, is flawed and fraught with political emotion. Anti-Republican cynics, for instance, see it as a nefarious, blatant attempt by Republicans to stack the Supreme Court.
Here's the back story:
Between now and Jan. 8, 2019, four state Supreme Court justices will be forced to retire. Their terms expire on the same day a new governor will be sworn in.
The issue to be addressed in Amendment 3 is to bring clarity to who should appoint those justices successors — the outgoing governor or the incoming governor?
Florida's constitution is somewhat unclear. It doesn't explicitly state the process, although state Supreme Court rulings in 1955 and 2006 clearly stated that replacements cannot be appointed until after an outgoing justice's term expires.
Nonetheless, Sen. Tom Lee, R-Brandon, head of the Senate Judiciary Committee, and others see the almost simultaneous retirements of the four justices as a judicial dilemma that needs correcting: It typically takes governors at least three months to fill judicial vacancies. With four empty slots at once, the courts could be over-burdened.
Indeed, back in 2006, Florida Supreme Court Justice Raoul Cantero argued this very point when then-Gov. Jeb Bush sought the court's opinion on whether outgoing governors had the authority to fill judicial vacancies at the end of their terms.
While the court said no, Justice Cantero warned that vacancies on the courts should be avoided. He wrote that waiting to begin the judicial nominating replacement process until a judge's term expires places an enormous burden on the remaining members of the court. What's more, he said, there was nothing in the state constitution preventing a judicial nominating commission from beginning the nominating process to name a successor before a vacancy actually occurs.
Amendment 3, then, is the Republican Legislature's attempt to remedy a potential gap on the courts. The question for voters can be narrowed to this:
Should an outgoing governor have the right to appoint Supreme Court justices, or is an incoming governor better suited for that?
Democrats argue this proposal is an attempt to stack the court. And they will remind you that two years ago Republican House Speaker Dean Cannon attempted to place on the ballot another proposed amendment that would have restricted judicial authority in favor of the Legislature.
Republicans, meanwhile, say the amendment isn't partisan because there is no guarantee Scott will be re-elected. They say it's merely an effort to bring clarity to a fuzzy process that is crucial to the smooth operation of the courts.
Will the implementation of Amendment 3 infringe on your individual liberty? No.
Is it a measure that, if passed, is appropriate for the Constitution? On that score, you could say “yes.” It's a matter affecting the relationship between two branches of the state government.
The problem is the remedy. There are better ways to handle it — and they could be adopted legislatively.
This measure just has too much of a scent of politics. It doesn't feel right to let a departing governor, no longer accountable to voters, leave Tallahassee with the last laugh on his successor.
The Florida Constitution has been clear since 1955: A vacant judicial seat cannot be filled until a judge's term is expired. If that expired term occurs on the last day of a governor's term or first day of a succeeding governor's term, the constitution says that's when the nominating process should begin.
If there are gaps on the bench that strain the courts, surely lawmakers can figure out how to resolve them legislatively.
MARIJUANA AMENDMENT: RECIPE FOR MISCHIEF?
Following are a few of the more vague components of the proposed medical marijuana amendment that we have italicized for emphasis:
(1) “Debilitating Medical Condition” means cancer, glaucoma, positive status for human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), hepatitis C, amyotrophic lateral sclerosis (ALS), Crohn's disease, Parkinson's disease, multiple sclerosis or other conditions for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient.
(3) “Identification card” means a document issued by the Department [of Health] that identifies a person who has a physician certification or a personal caregiver who is at least 21 years old and has agreed to assist with a qualifying patient's medical use of marijuana.
(7) “Personal caregiver” means a person who is at least 21 years old who has agreed to assist with a qualifying patient's medical use of marijuana and has a caregiver identification card issued by the Department. A personal caregiver may assist no more than five qualifying patients at one time...
(9) “Physician certification” means a written document signed by a physician, stating that in the physician's professional opinion, the patient suffers from a debilitating medical condition ... A physician certification may only be provided after the physician has conducted a physical examination of the patient and a full assessment of the patient's medical history.
To read the entire amendment text, go to: election.dos.state.fl.us/initiatives/fulltext/pdf/50438-2.pdf.