Fine v. Firestone

• Decision Date: 16 December 1983
• Docket Number: No. AT-334,AT-334
• Citation: 443 So.2d 253
• Parties: Martin FINE, Petitioner, v. George FIRESTONE, Respondent.
• Court: Florida District Court of Appeals

Page 253

443 So.2d 253

Martin FINE, Petitioner, v. George FIRESTONE, Respondent.

No. AT-334.

District Court of Appeal of Florida First District.

Dec. 16, 1983.

Arthur J. England, of Steel, Hector & Davis, and Irwin J. Block and Stuart L. Simon, of Fine, Jacobson, Block, Klein, Colan & Simon, Miami, for petitioner.

Jim Smith, Atty. Gen., for respondent.

Robert E. Gibson, Tallahassee, amicus curiae.

Dennis M. O'Connor, Coral Gables, amicus curiae for Floridians for Tax Relief, Florida Citizens for Tax Relief, Limit Government Committee, and George Schultz, Ed Havill and Y.Y. Phillips, Jr.

Steven A. Been and C. Anthony Cleveland, Tallahassee, for amicus curiae Florida Ed. Ass'n/United, American Federation of Teachers, AFL-CIO.

Judith A. Brechner, Tallahassee, amicus curiae for Ralph D. Turlington.

Joseph W. Little, Gainesville, amicus curiae.

Bruce Rogow, Fort Lauderdale, amicus curiae for American Civil Liberties Union Foundation of Florida.

Joseph Maloney, Sacramento, Cal., and James F. Pollack, Coral Gables, amicus curiae for Pacific Legal Foundation.

Earl B. Hadlow and Robert J. Winicki, Jacksonville, amicus curiae for Southeastern Legal Foundation, Inc.

WENTWORTH, Judge.

Petitioner seeks an unspecified extraordinary writ directing the Secretary of State to remove a proposed constitutional amendment from the ballot for the November 1984 general election. The proposed amendment is a revenue limitation measure ^{1 1} for which the Secretary has issued a Certificate of Ballot Position after verifying that the submitted initiative form was signed by the requisite number of electors. We find that petitioner has failed to demonstrate entitlement to the relief requested, and the petition is therefore denied.

Relief by extraordinary writ, which the petitioner seeks, ² is available only when no other adequate remedy exists, see Shevin ex rel. State v. Public Service Commission, 333 So.2d 9 (Fla.1976), and only upon a "straightforward question of law" which does not involve fact-finding. See Republican State Executive Committee v. Graham, 388 So.2d 556 (Fla.1980). Not only does the petition in this case involve speculative assertions which require fact-finding, ³ but it also appears that petitioner has available an adequate remedy by an action for declaratory judgment or an injunction in the circuit court. See e.g., Floridians Against Casino Takeover v. Let's Help Florida, 363 So.2d 337 (Fla.1978); Weber v. Smathers, 338 So.2d 819 (Fla.1976); Adams v. Gunter, 238 So.2d 824 (Fla.1970); Rivera-Cruz v. Gray, 104 So.2d 501 (Fla.1958). ⁴ Since an adequate remedy is otherwise available and more than a "straightforward question of law" is presented, petitioner has failed to establish a predicate for relief by extraordinary writ. ⁵

Because we elect to certify the issues presented for Florida Supreme Court review as questions of great public importance, ⁶ we also treat briefly the substance of petitioner's argument, in the interest of judicial expedience. Assuming, therefore, that the petition presents issues now cognizable in this court, we would still decline to grant the relief requested. In the context of a pre-election challenge the standard to be applied is whether the proposed amendment is "clearly and conclusively defective." See Floridians and Weber, supra. We would find that petitioner has not met this standard and that judicial intervention prior to submission of the proposed amendment to the electors is therefore inappropriate.

Article XI, Section 3, Florida Constitution, provides that:

The power to propose a 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.

This provision imposes a functional, rather than locational, restraint on the effective scope of an initiative measure. See Floridians, supra. ⁷ Petitioner asserts that the proposed amendment in the present case is confusing and inoperable, and subverts the legislative function while rendering the government "functionally inoperative." Petitioner culminates this broad-based attack with the further assertion that the proposed amendment is "tantamount to a revision of the entire constitution" and thereby violates Article XI, Section 3. But as Floridians establishes, under Article XI, Section 3,

... substantial effect by the initiative proposal upon any other section or article of the Constitution becomes irrelevant. And, of course, 'conflict' with existing articles or sections of the Constitution can afford no logical basis for invalidating an initiative proposal.

Floridians also indicates that the one subject limitation should be viewed broadly, whereby "widely divergent rights and requirements" may be embraced within a single subject area, and that the judiciary should apply a "pragmatic common sense judicial philosophy" in this regard. Applying this pragmatic common sense approach, we would find that the proposed amendment in this case contains various elements within the ambit of the single subject of revenue limitation, and that petitioner has not established that the proposal is "clearly and conclusively defective" within the purview of Article XI, Section 3, Florida Constitution.

Petitioner also asserts that the proposed amendment violates the federal constitution's guarantee of due process of law. Federal constitutional constraints have been held applicable to initiative petitions and ballot referenda, see Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 102 S.Ct. 434, 70 L.Ed.2d 492 (1981), and due process requires that an enactment not be unreasonable, arbitrary, or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained. Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940 (1934). But as Dade County v. Dade County League of Municipalities, 104 So.2d 512, 515 (Fla.1958), indicates, in the context of a proposed ballot measure,

When a proposal ... is assaulted on the grounds that it violates the Constitution, the courts will not interfere if upon ultimate approval by the electorate such proposal can have a valid field of operation even though segments of the proposal or its subsequent applicability to particular situations might result in contravening the organic law.

Also see Gray v. Winthrop, 115 Fla. 721, 156 So. 270 (1934); Gray v. Moss, 115 Fla. 701, 156 So. 262 (1934); Rivergate Restaurant Corporation v. Metropolitan Dade County, 369 So.2d 679 (Fla. 3d DCA 1979). Such is the applicable rule "even though it might ultimately become necessary to determine that particular aspects" of the amendment are unconstitutional. Dade County League of Municipalities, supra. In the present case petitioner has not established that the proposed amendment is so patently unconstitutional in its entirety as to be without any valid field of operation, and petitioner's due process challenge is therefore premature.

While we decline to direct the removal of the proposed amendment from the general election ballot, such action does not preclude petitioner from otherwise seeking appropriate relief either prior to the election or thereafter if the amendment is ultimately adopted by the electors. If such other relief is sought this opinion should not be construed as expressing any view as to whether petitioner has met the burden applicable in such proceeding.

In accordance with Fla.R.App.P. 9.030(a)(2)(A)(v), we hereby certify to the Supreme Court the following as a question of great public importance:

WHETHER IN THE CIRCUMSTANCES PRESENTED THE PROPOSED CONSTITUTIONAL AMENDMENT IS SUSCEPTIBLE TO CONSTITUTIONAL CHALLENGE BY PETITION FOR AN EXTRAORDINARY WRIT, AND IF SO:

WHETHER THE PROPOSED REVENUE LIMITATION AMENDMENT INVOLVED IN THIS CASE COMPORTS WITH ARTICLE XI, SECTION 3, FLORIDA CONSTITUTION, AND IF SO:

WHETHER THE PROPOSED REVENUE LIMITATION AMENDMENT INVOLVED IN THIS CASE IS PRESENTLY SUSCEPTIBLE TO A DUE PROCESS CHALLENGE UNDER THE FEDERAL CONSTITUTION.

The petition for an extraordinary writ is denied.

LARRY G. SMITH and JOANOS, JJ., concur.

1 The proposed amendment, which would add a new section to Article VII of the Florida Constitution, provides as follows:

CITIZENS' CHOICE ON GOVERNMENT REVENUE:

(a) Revenue received by the state and by each taxing unit for each fiscal period shall be limited to the revenue limit for the preceeding fiscal period plus the annual adjustment and any ad valorem taxes on improvements due to new construction subject to assessment for the first time.

(b) For purposes of this section:

(1) revenue includes ad valorem taxes, other taxes and all other receipts, but excludes receipts from the United States government and its instrumentalities, bonds issued, loans received and the cost of investments sold. Receipts of agencies and instrumentalities and proprietary and trust...