Advisory Opinion re Legis. Dist. Boundaries

• Decision Date: 17 December 2009
• Docket Number: No. SC08-1163.,No. SC08-1165.,SC08-1163.,SC08-1165.
• Citation: 24 So.3d 1198
• Parties: ADVISORY OPINION TO The ATTORNEY GENERAL RE STANDARDS FOR ESTABLISHING LEGISLATIVE DISTRICT BOUNDARIES (FIS). Advisory Opinion to the Attorney General re Standards for Legislature to Follow in Congressional Redistricting (FIS).
• Court: Florida Supreme Court

24 So.3d 1198

ADVISORY OPINION TO The ATTORNEY GENERAL RE STANDARDS FOR ESTABLISHING LEGISLATIVE DISTRICT BOUNDARIES (FIS).

Advisory Opinion to the Attorney General re Standards for Legislature to Follow in Congressional Redistricting (FIS).

No. SC08-1163.

No. SC08-1165.

Supreme Court of Florida.

December 17, 2009.

Original Proceeding—Advisory Opinion—Attorney General.

Bill McCollum, Attorney General, Louis F. Hubener, Solicitor General, Tallahassee, FL, for Petitioner.

Barry Richard and M. Hope Keating of Greenberg Traurig, P.A., Tallahassee, FL, Jon L. Mills of Boies, Schiller and Flexner, LLP, Miami, FL, and Timothy McLendon, Gainesville, FL, Mark Herron of Messer, Caparello and Self, P.A., Tallahassee, FL, and E. Thom Rumberger of Rumberger, Kirk and Caldwell, P.A., Tallahassee, FL, for FairDistrictsFlorida.org, Sponsor.

Jason Vail, General Counsel, Florida Senate, and Jeremiah M. Hawkes, General Counsel, Florida House of Representatives, Tallahassee, FL, on behalf of The Florida Legislature, as Opponents.

PER CURIAM.

On January 29, 2009, this Court approved for placement on the ballot two proposed amendments to the Florida Constitution detailing additional guidelines that the Florida Legislature must follow when it conducts legislative and congressional reapportionment. See Advisory Op. to Att'y Gen. re Standards for Establishing Legislative Dist. Boundaries, 2 So.3d 175, 191 (Fla.2009). While this Court considered the validity of the petitions, the Attorney General also requested that the Court review the corresponding financial impact statements to evaluate their compliance with section 100.371, Florida Statutes (2008). See Advisory Op. to Att'y Gen. re Standards for Establishing Legislative Dist. Boundaries (FIS), 2 So.3d 161, 162 (Fla.2009). We remanded the statements to the Financial Impact Estimating Conference (FIEC) to be redrafted because the statements in their then-current form did not satisfy the statutory requirements. See id. at 166.

On February 18, 2009, the Attorney General filed revised financial impact statements with this Court and requested an opinion with regard to whether the statements comply with section 100.371, Florida Statutes (2008). As with the previous submissions, the revised statements are identical:

The fiscal impact cannot be determined precisely. State government and state courts may incur additional costs if litigation increases beyond the number or complexity of cases which would have occurred in the amendment's absence.

We possess jurisdiction to consider the validity of financial impact statements pursuant to article IV, section 10, and article V, section 3(b)(10) of the Florida Constitution.

ANALYSIS

Applicable Law

Article XI, section 5 of the Florida Constitution addresses financial impact statements and provides in relevant part:

(c) The legislature shall provide by general law, prior to the holding of an election pursuant to this section, for the provision of a statement to the public regarding the probable financial impact of any amendment proposed by the initiative pursuant to section 3.

Section 100.371(5), Florida Statutes (2008), addresses financial impact statements and provides:

(5)(a) Within 45 days after receipt of a proposed revision or amendment to the State Constitution by initiative petition from the Secretary of State, the Financial Impact Estimating Conference shall complete an analysis and financial impact statement to be placed on the ballot of the estimated increase or decrease in any revenues or costs to state or local governments resulting from the proposed initiative. The Financial Impact Estimating Conference shall submit the financial impact statement to the Attorney General and Secretary of State.

....

(c)....

2. Principals of the Financial Impact Estimating Conference shall reach a consensus or majority concurrence on a clear and unambiguous financial impact statement, no more than 75 words in length, and immediately submit the statement to the Attorney General. Nothing in this subsection prohibits the Financial Impact Estimating Conference from setting forth a range of potential impacts in the financial impact statement....

3. If the members of the Financial Impact Estimating Conference are unable to agree on the statement required by this subsection, or if the Supreme Court has rejected the initial submission by the Financial Impact Estimating Conference and no redraft has been approved by the Supreme Court by 5 p.m. on the 75th day before the election, the following statement shall appear on the ballot pursuant to s. 101.161(1): "The financial impact of this measure, if any, cannot be reasonably determined at this time."

....

(e)1. Any financial impact statement that the Supreme Court finds not to be in accordance with this subsection shall be remanded solely to the Financial Impact Estimating Conference for redrafting, provided the court's advisory opinion is rendered at least 75 days before the election at which the question of ratifying the amendment will be presented. The Financial Impact Estimating Conference shall prepare and adopt a revised financial impact statement no later than 5 p.m. on the 15th day after the date of the court's opinion.

In our opinion that rejected the original financial impact statements, we explained our duty with regard to the review of such statements:

[W]hen we review a financial impact statement for compliance with section 100.371, we address "whether the statement is clear, unambiguous, consists of no more than seventy-five words, and is limited to addressing the estimated increase or decrease in any revenues or costs to the state or local governments." Advisory Op. to Att'y Gen. re: Funding of Embryonic Stem Cell Research, 959 So.2d 195, 202 (Fla.2007). Because the financial impact statement will be printed on the ballot, the same due process concerns that inure to the title and summary of a proposed amendment are also applicable to the financial impact statement. See Askew v. Firestone, 421 So.2d 151, 155 (Fla.1982) ("[T]he voter should not be misled.... What the law requires is that the ballot be fair and advise the voter sufficiently to enable him intelligently to cast his ballot." (alteration in original) (quoting Hill v. Milander, 72 So.2d 796, 798 (Fla.1954))). Accordingly, we have an obligation to review the ballot as a whole to ensure that no part of the ballot—which includes the financial impact statement— is misleading.

.... The rationale behind such a review is both clear and logical. It would make little sense to require that a proposed amendment title and summary not be misleading to voters, but then allow a financial impact statement that contains inaccurate or completely speculative predictions of potential financial impact to be placed on the ballot.

Legislative District Boundaries (FIS), 2 So.3d at 164.

Application of Law

We conclude that the current statements satisfy the requirements of section 100.371. The statements consist of thirty-four words each, which falls well within the seventy-five word limit mandated by the statute. See § 100.371(5)(c)2., Fla. Stat. (2008). In addition, the current statements do not contain the vague and speculative reference to "millions of dollars" in increased costs that this Court rejected in the original financial impact statements. See Legislative District Boundaries (FIS), 2 So.3d at 165 n. 3; see also Advisory Op. to Att'y Gen. re Referenda Required for Adoption & Amendment of Local Gov't Comprehensive Land Use Plans, 992 So.2d 190, 193 (Fla.2008) (rejecting statement which provided a financial impact of "millions of dollars" because under this language, "the cost of implementation of the amendment could be anywhere from $2 million to $999 million," and concluding that such vague language may cause citizens to vote against the amendment "solely because of fear generated by the misleading statement concerning the potential economic consequences of the amendment").

Moreover, the statements do not include any nonmonetary impacts or financial impacts beyond the revenues or costs to state or local governments, the inclusion of which has led to the rejection of impact statements in the past. See, e.g., Advisory Op. to Att'y Gen. re Authorizes Miami-Dade & Broward County Voters to Approve Slot Machines in Parimutuel Facilities, 880 So.2d 689 (Fla.2004); Advisory Op. to Att'y Gen. re Public Protection from Repeated Medical Malpractice, 880 So.2d 686 (Fla.2004); Advisory Op. to Att'y Gen. re Repeal of High Speed Rail Amendment, 880 So.2d 624 (Fla.2004).

Instead, the statements commence with the conclusion that the impact of the amendments cannot be precisely determined, a conclusion which is clearly permitted under the statute. See § 100.371(5)(c)3., Fla. Stat. (2008) (allowing an FIS to provide that "[t]he financial impact of this measure, if any, cannot be reasonably determined at this time"). The statements then follow with a second, conditional sentence—if litigation increases beyond the number or complexity of cases which would have occurred in the amendment's...