Biddulph v. Mortham
| Decision Date | 01 August 1996 |
| Docket Number | No. 95-3131,95-3131 |
| Citation | 89 F.3d 1491 |
| Parties | Dave BIDDULPH, Tax Cap Committee, Plaintiffs-Appellants, v. Sandy MORTHAM, Florida Secretary of State, Defendant-Appellee. Non-Argument Calendar. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Joseph W. Little, Joseph W. Little, P.A., Gainesville, FL, for appellants.
George L. Waas, Attorney General's Office, Dept. of Legal Affairs, Tallahassee, FL, for appellee.
Appeal from the United States District Court for the Northern District of Florida.
Before TJOFLAT, Chief Judge, and KRAVITCH and HATCHETT, Circuit Judges.
I. Introduction
Appellant Dave Biddulph is a proponent of "Voter Approval of New Taxes," an initiative proposal to amend the Florida Constitution to prohibit the imposition of any new state or local taxes except upon voter approval. Appellant Tax Cap Committee ("Tax Cap"), formed by Biddulph, is the initiative proposal's official sponsor committee. "Voter Approval of New Taxes" was ultimately excluded from the ballot for failure to comply with Florida requirements governing the substance and titles of amendments proposed by initiative. Appellants contend that Florida's initiative process violates their First and Fourteenth Amendment rights because Florida's process is not "narrowly tailored." Appellants argue that instead of simply excluding the proposed amendment from the ballot, Florida could provide initiative proposal sponsors an opportunity to correct the title and language of deficient proposals. This is a case of first impression in this circuit. We hold that state initiative regulations, like the ones in this case, that do not burden "core political speech," are content-neutral, and do not disparately impact particular political viewpoints are not subject to strict scrutiny under the First Amendment.
II. Florida's Constitutional Amendment Initiative Scheme
Florida's Constitution gives the "people" the power to propose amendments to the state constitution. Fla. Const. art. XI, § 3. Until November 1994, the Florida Constitution required that amendments proposed by initiative address a single subject and that initiative petitions be signed by some percentage of the electorate:
The power to propose the revision or amendment of any portion or portions of this constitution by initiative is reserved to the people, provided that any such revision or amendment shall embrace but one subject and matter directly connected therewith. It may be invoked by filing with the secretary of state a petition containing a copy of the proposed revision or amendment, signed by a number of electors in each of one half of the congressional districts of the state, and of the state as a whole, equal to eight per cent of the votes cast in each of such districts, respectively and in the state as a whole in the last preceding election in which presidential electors were chosen.
Fla. Const. art. XI, § 3 (West 1993). In 1994, after Biddulph's proposed amendment was removed from the ballot, Florida voters approved a constitutional amendment that excepted from the single-subject requirement of Article XI, Section 3, any revisions or amendments limiting the power of government to raise revenue. See Fla. Const. art. XI, § 3 (West 1995).
A Florida statute further requires that initiative proposal sponsors write and submit in clear and unambiguous language (1) an "explanatory statement" or "substance" of the amendment, not to exceed 75 words, describing the chief purpose of the measure and (2) a title, not to exceed 15 words. The substance and title alone appear on the ballot. Fla.Stat.Ann. § 101.161 (West Supp.1996).
Before an initiative petition may be circulated for signatures, the proposal's sponsor must register as a political committee and submit the petition form to the secretary of state for approval. Fla.Stat.Ann. § 100.371(3) (West 1982). The secretary of state, through the Division of Elections, evaluates the petition format but does not review the text of the proposed amendment or its ballot summary and title to determine whether they comply with the constitution's single subject requirement and § 101.161. Fla.Stat.Ann. § 100.371(3) (West 1982); Fla.Admin.Code Ann. r. 1S-2.009(1) (1996). If the proposed initiative amendment petition format is deemed sufficient by the Division of Elections, the sponsor may circulate petition forms for signatures. Fla.Admin.Code Ann. r. 1S-2.009(2) (1996). After collecting the signatures, the sponsor must submit the signed petition forms to the appropriate supervisor of elections who, upon payment of a fee equal to the sum of ten cents per signature checked or the actual costs of checking each signature, verifies the signatures on the petition forms and submits a certificate to the secretary of state indicating the total number of signatures checked, the number deemed valid, and the geographical distribution. Fla.Stat.Ann. § 100.371(4) (West Supp.1996), Fla.Stat.Ann. § 99.097(4) (West Supp.1996). If the secretary of state determines that the sponsor has obtained the constitutionally required number of signatures with the appropriate geographical distribution, certification of ballot position will be issued to the sponsor. Fla.Admin.Code Ann. r. 1S-2.0091(4).
The secretary of state must then submit the sponsor's initiative petition to the attorney general, Fla.Stat.Ann. § 15.21 (West 1988), who in turn must petition the Florida Supreme Court for an advisory opinion regarding the compliance of the text of the proposed amendment with the single subject requirement of Article XI, Section 3 of the state constitution and the compliance of the proposed ballot title and substance with § 101.161. See Fla.Stat.Ann. § 16.061 (1995); see also Fla. Const. art. IV, § 10 (). If the state supreme court finds either that the proposed amendment violates the single-subject requirement or that the proposed ballot title or summary is ambiguous, the supreme court will order removal of the initiative petition from the ballot. See, e.g., In re Advisory Opinion to the Attorney General-Restricts Laws Related to Discrimination, 632 So.2d 1018, 1021 (Fla.1994).
III. Facts
In 1993, Biddulph registered Tax Cap as sponsor committee for the proposed "Voter Approval of New Taxes" amendment. In August 1993, the Secretary of State approved Biddulph's initiative petition format. Biddulph then circulated the petition in an attempt to place the proposed amendment on the November 1994 ballot. Less than a year later, Biddulph submitted the signed petition forms to the supervisor of elections, who verified the signatures and transmitted the certificates to the Secretary of State. The Secretary of State certified the proposed "Voter Approval of New Taxes" amendment for a ballot position in the November 1994 election.
Pursuant to Florida law, the Secretary of State submitted the initiative proposal to the Attorney General, who sought an advisory opinion from the supreme court on the legal sufficiency of the proposal. Over two months later, and only a month before the 1994 election, the supreme court issued an opinion concluding that Biddulph's proposed amendment was legally insufficient for two reasons: it violated the constitutional single-subject requirement, and it violated § 101.161 because its title was misleading. Advisory Opinion to Attorney General re Tax Limitation, 644 So.2d 486, 491-94 (Fla.1994). The Secretary of State then directed the supervisors of elections to remove Biddulph's amendment proposal from the ballot.
Nine days later, Biddulph filed a petition for a writ of mandamus asking the Florida Supreme Court to order the Secretary of State to eliminate the deficiencies in the title and summary of Biddulph's initiative proposal and to place the revised language on the ballot for the November 1994 election. The supreme court denied the petition. 1 Biddulph then filed this action in federal court, pursuant to 42 U.S.C. § 1983, against the Secretary of State. The district court, concluding that Biddulph had failed to state a claim, dismissed his case.
IV. Discussion
Although the November 1994 election has passed, this case is not moot. Biddulph's signed and verified petition forms are valid in Florida for four years after the date the signatures were affixed to the forms. Fla.Stat.Ann. § 100.371(2). The signatures were collected in either 1993 or 1994, so Biddulph's verified petition forms are valid at least through 1997. Therefore, were we to order the state to revise the ballot title and or amendment language to comply with state law as Biddulph requests, Biddulph's proposed amendment presumably could be placed on the ballot in an upcoming election.
The Secretary of State contends that this case is moot on other grounds: the single subject requirement of Article XI, Section 3 no longer applies to initiative proposals, that like Biddulph's, involve revenue measures, and the Florida Supreme Court recently issued an opinion granting ballot access to a previously-excluded revenue amendment as a result of that change. See Advisory Opinion to the Attorney General Re Tax Limitation, 673 So.2d 864 (1996) ("Tax Limitation II "). The implication of the Secretary of State's motion is that Biddulph's proposed amendment will likewise be deemed legally sufficient and granted ballot access. Neither the amendment to Article XI, Section 3 nor Florida's decision in Tax Limitation II renders this case moot, however. The supreme court had originally denied ballot access to the proposed amendment at issue in Tax Limitation II only because it violated the single-subject requirement. Advisory Opinion to Attorney General re Tax Limitation, 644 So.2d 486, 491 (Fla.1994). In contrast, the court excluded Biddulph's "Voter Approval of New Taxes" proposal not only because...
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