Armstrong v. Harris, No. SC95223.

CourtUnited States State Supreme Court of Florida
Writing for the CourtSHAW, J.
Citation773 So.2d 7
Decision Date07 September 2000
Docket NumberNo. SC95223.
PartiesRev. Dr. James ARMSTRONG, et al., Appellants, v. Katherine HARRIS, etc., et al., Appellees.

773 So.2d 7

Rev. Dr. James ARMSTRONG, et al., Appellants,
v.
Katherine HARRIS, etc., et al., Appellees

No. SC95223.

Supreme Court of Florida.

September 7, 2000.

Rehearing Denied December 5, 2000.


773 So.2d 9
Randall C. Berg, Jr., Peter M. Siegel, and JoNel Newman of the Florida Justice Institute, Inc., Miami, Florida, for Appellants

Robert A. Butterworth, Attorney General, Louis F. Hubener, Assistant Attorney General, James A. Peters, Special Counsel, and Richard B. Martell, Assistant Attorney General, Tallahassee, Florida, for Appellees.

Tom Warner, Solicitor General of Florida, Tallahassee, Florida, on behalf of Robert A. Butterworth, Attorney General, and the State of Florida, and on behalf of Appellees Katherine Harris, et al.

SHAW, J.

We have on appeal a judgment certified by the district court to be of great public importance requiring immediate resolution by this Court. We have jurisdiction. Art. V, § 3(b)(5), Fla. Const.

I. FACTS

The Florida Legislature filed with the Florida Secretary of State ("Secretary") a joint resolution (No. 3505) of the House of Representatives of the Florida Legislature proposing an amendment to article I, section 17, Florida Constitution, relating to excessive punishments (May 5, 1998). The proposed amendment was designated Amendment No. 2. Dr. Armstrong and other citizens filed a petition for writ of mandamus in this Court challenging the validity of the proposed amendment (October 9), but the Court by a four-to-three vote declined to exercise jurisdiction "without prejudice to Armstrong to file an appropriate action in circuit court" (October 19).1 Armstrong then filed a complaint in circuit court seeking mandamus, injunctive, and declaratory relief (October 20), and the court ruled thusly: It dismissed the claim for mandamus relief, denied injunctive relief, and withheld ruling on the claim for declaratory relief (October 26). Armstrong sought certiorari review in the district court (October 26); that court certified the issue to this Court (October 28). On the day preceding the general election, this Court unanimously dismissed the appeal for technical reasons, without prejudice (November 2).2 Voters at the general

773 So.2d 10
election approved the amendment (November 3)

Armstrong filed a motion in this Court asking the Court to remand the case to the district court (November 11). He then filed in circuit court the present amended petition claiming that the ballot title and summary are inaccurate and again seeking mandamus, injunctive, and declaratory relief (December 3). The Secretary filed an answer in circuit court conceding that this claim is justiciable in an action for injunctive or declaratory relief3 but asserting that the ballot title and summary are accurate (December 28). Armstrong sought summary judgment, contending that the ballot title and summary are misleading as a matter of law (January 4, 1999). The Secretary filed a cross-motion for summary judgment, arguing that the ballot title and summary are adequate (January 27). The circuit court's authority to decide the matter was not challenged or raised as an issue. This Court then issued an order formally remanding the case to the circuit court, without prejudice, to resolve the pending issues (February 2, 1999).4 The circuit court reviewed the respective arguments in the summary judgment motions and granted summary judgment in favor of the Secretary, concluding that the Secretary's legal argument was more persuasive (February 25).5 Armstrong appealed (March 15). The district court certified the case to this Court via "pass through" jurisdiction (March 31).6

Armstrong contends that both the ballot title and summary to Amendment No. 2 are defective for several reasons: They fail to disclose that the current prohibition against "cruel or unusual punishment" would be changed to "cruel and unusual punishment"; they give the false impression that the death penalty is in danger of being abolished and needs to be "preserved"; and they fail to give notice that the amendment would alter the separation of powers between the branches of government by giving the Legislature unfettered discretion to establish both the method of execution and the crimes susceptible to the death penalty.

II. STANDING

In her answer brief before this Court, the Secretary argued—as she did below—that the ballot title and summary are accurate. She never argued or suggested that Armstrong lacks standing to pursue this action. Following oral argument

773 So.2d 11
before this Court, the Secretary submitted a supplemental brief7 in which she now contends that Armstrong cannot pursue this appeal because the general election already has taken place, the voters have approved the amendment, and Armstrong's action was dilatory. We disagree

Article XI, section 5, Florida Constitution, contains a pre-election notice requirement which provides that a proposed constitutional amendment must be published in newspapers of general circulation throughout the state at both ten and six weeks prior to the election.8 The purpose of this requirement is to avoid a "November surprise" in which voters are taken unawares in the voting booth by a proposed amendment. If citizens are given adequate pre-election notice, those who object to the substance of an amendment can voice their views in the public forum, and those who object to the regularity of the ballot title and summary can challenge the amendment in court.

Assuming that Armstrong received constructive notice of the present amendment in conformity with article XI, section 5, his failure to file the initial petition until several weeks later (i.e., three and a half weeks before the election) does not appear dilatory. Nothing in the record reveals that, prior to obtaining constructive notice, Armstrong, et al., constituted a formal political apparatus or an established special interest group with clear pre-publication knowledge of the amendment. Rather, appellants appear to be an ad hoc group of concerned citizens who, upon receiving notice, required a reasonable period of time in which to exercise their electoral prerogative-i.e., to meet and discuss the matter; to organize; to chart a course of action; to fund their organization, if necessary; to employ counsel; to research the issues, and to file suit. Given the pre-election publication schedule set forth in article XI, section 5, appellants filed their petition within a reasonable time after receiving constructive notice of the proposed amendment.

III. THE ACCURACY REQUIREMENT

A court may declare a proposed constitutional amendment invalid only if the record shows that the proposal is clearly and conclusively defective;9 the standard of review for a pure question of law is de novo.10 Proposed amendments to the Florida Constitution may originate in any of several sources, including the Legislature,11 revision commission,12 citizen initiative,13 or constitutional convention.14

773 So.2d 12
Regardless of source, a proposed amendment ultimately must be submitted to the electors for approval at the next general election. Article XI, section 5, Florida Constitution, states:
SECTION 5. Amendment or revision election.—
(a) A proposed amendment to or revision of this constitution, or any part of it, shall be submitted to the electors at the next general election held more than ninety days after the joint resolution, initiative petition or report of revision commission, constitutional convention or taxation and budget reform commission proposing it is filed with the custodian of state records, unless, pursuant to law enacted by the affirmative vote of three-fourth of the membership of each house of the legislature and limited to a single amendment or revision, it is submitted at an earlier special election held more than ninety days after such filing.

Art. XI, § 5, Fla. Const. (emphasis added). Implicit in this provision is the requirement that the proposed amendment be accurately represented on the ballot; otherwise, voter approval would be a nullity.15

This accuracy requirement, which applies to all proposed constitutional amendments, has been codified by the Legislature in chapter 101, Florida Statutes (1997). Because the text of a proposed amendment oftentimes is detailed and lengthy, section 101.161 provides that only a title and brief summary of the amendment's "chief purpose" may be listed on the ballot. The actual text of the amendment does not appear:

101.161 Referenda; ballots.—
(1) Whenever a constitutional amendment or other public measure is submitted to the vote of the people, the substance of such amendment or other public measure shall be printed in clear and unambiguous language on the ballot after the list of candidates, followed by the word "yes" and also by the word "no," and shall be styled in such a manner that a "yes" vote will indicate approval of the proposal and a "no" vote will indicate rejection. The wording of the substance of the amendment or other public measure and the ballot title to appear on the ballot shall be embodied in the joint resolution, constitutional revision commission proposal, constitutional convention proposal, taxation and budget reform commission proposal, or enabling resolution or ordinance. The substance of the amendment or other public measure shall be an explanatory statement, not exceeding 75 words in length, of the chief purpose of the measure. The ballot title shall consist of a caption, not exceeding 15 words in length, by which the measure is commonly referred to or spoken of.

§ 101.161(1), Fla. Stat. (1997) (emphasis added). Significantly, both the ballot title and summary are prepared by the amendment's sponsor.16

Because voters will not have the actual text of the amendment before them in the

773 So.2d 13
voting booth when they enter their votes, the accuracy requirement is of paramount importance for the ballot title and summary:
As previously stated, section 101.161
...

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113 practice notes
  • League of Women Voters Minn. v. Ritchie, No. A12–0920.
    • United States
    • Supreme Court of Minnesota (US)
    • August 27, 2012
    ...is simple: It applies across-the-board to all constitutional amendments, including those proposed by the Legislature.Armstrong v. Harris, 773 So.2d 7, 16 (Fla.2000). Similarly, in Armstrong the Florida court found unconstitutionally misleading a ballot summary concerning a constitutional am......
  • State v. Addison, No. 2008-945
    • United States
    • Supreme Court of New Hampshire
    • November 6, 2013
    ...significance to the use of the disjunctive. See People v. Carmony, 127 Cal. App. 4th 1066, 1085 (Ct. App. 2005); Armstrong v. Harris, 773 So. 2d 7, 17 (Fla. 2000); State v. Mitchell, 577 N.W.2d 481, 488, 490 (Minn. 1998); People v. Bullock, 485 N.W.2d 866, 872 n.11. (Mich. 1992). Other juri......
  • RJL v. State, No. SC02-1493.
    • United States
    • United States State Supreme Court of Florida
    • November 18, 2004
    ...under the expunction statute — is a pure question of law, and therefore the proper standard of review is de novo. See Armstrong v. Harris, 773 So.2d 7, 11 (Fla.2000). In Randall, the First District held that the retention of a criminal history record does not constitute punishment, but rath......
  • State v. Addison, No. 2008–945
    • United States
    • Supreme Court of New Hampshire
    • November 6, 2013
    ...to the use of the disjunctive. See People v. Carmony, 127 Cal.App.4th 1066, 1085, 26 Cal.Rptr.3d 365 (Ct.App.2005) ; Armstrong v. Harris, 773 So.2d 7, 17 (Fla.2000) ; State v. Mitchell, 577 N.W.2d 481, 488, 490 (Minn.1998) ; People v. Bullock, 440 Mich. 15, 485 N.W.2d 866, 872 n. 11 (1992).......
  • Request a trial to view additional results
113 cases
  • League of Women Voters Minn. v. Ritchie, No. A12–0920.
    • United States
    • Supreme Court of Minnesota (US)
    • August 27, 2012
    ...is simple: It applies across-the-board to all constitutional amendments, including those proposed by the Legislature.Armstrong v. Harris, 773 So.2d 7, 16 (Fla.2000). Similarly, in Armstrong the Florida court found unconstitutionally misleading a ballot summary concerning a constitutional am......
  • State v. Addison, No. 2008-945
    • United States
    • Supreme Court of New Hampshire
    • November 6, 2013
    ...significance to the use of the disjunctive. See People v. Carmony, 127 Cal. App. 4th 1066, 1085 (Ct. App. 2005); Armstrong v. Harris, 773 So. 2d 7, 17 (Fla. 2000); State v. Mitchell, 577 N.W.2d 481, 488, 490 (Minn. 1998); People v. Bullock, 485 N.W.2d 866, 872 n.11. (Mich. 1992). Other juri......
  • RJL v. State, No. SC02-1493.
    • United States
    • United States State Supreme Court of Florida
    • November 18, 2004
    ...under the expunction statute — is a pure question of law, and therefore the proper standard of review is de novo. See Armstrong v. Harris, 773 So.2d 7, 11 (Fla.2000). In Randall, the First District held that the retention of a criminal history record does not constitute punishment, but rath......
  • State v. Addison, No. 2008–945
    • United States
    • Supreme Court of New Hampshire
    • November 6, 2013
    ...to the use of the disjunctive. See People v. Carmony, 127 Cal.App.4th 1066, 1085, 26 Cal.Rptr.3d 365 (Ct.App.2005) ; Armstrong v. Harris, 773 So.2d 7, 17 (Fla.2000) ; State v. Mitchell, 577 N.W.2d 481, 488, 490 (Minn.1998) ; People v. Bullock, 440 Mich. 15, 485 N.W.2d 866, 872 n. 11 (1992).......
  • Request a trial to view additional results

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