Ray v. Mortham

• Citation: 742 So.2d 1276
• Decision Date: 02 September 1999
• Docket Number: No. 94,653.,94,653.
• Parties: Donald G. RAY, Louis P. Kalivoda, Sybil C. Mobley, David W. Bowers, and Clarence Fort, Appellants, v. Sandra MORTHAM, Florida Secretary of State in her capacity as Florida's Chief Elections Officer, Appellee.
• Court: United States State Supreme Court of Florida

742 So.2d 1276

Donald G. RAY, Louis P. Kalivoda, Sybil C. Mobley, David W. Bowers, and Clarence Fort, Appellants, v. Sandra MORTHAM,¹ Florida Secretary of State in her capacity as Florida's Chief Elections Officer, Appellee.

No. 94,653.

Supreme Court of Florida.

September 2, 1999.

Robert J. Boyd and Laura Boyd Pearce of MacFarlane, Ferguson & McMullen, Tallahassee, Florida, for Appellants.

Robert A. Butterworth, Attorney General, and George Waas, Assistant Attorney General, Tallahassee, Florida, for Appellee.

Talbot D'Alemberte, Tallahassee, Florida, for Alan C. Sundberg, Amicus Curiae.

Frank A. Shepherd, Miami, Florida, and John H. Findley, Sacramento, California, for Pacific Legal Foundation, Amicus Curiae.

PER CURIAM.

We have on appeal the trial court's order granting final summary judgment in favor of appellee, denying appellants' complaint for injunctive and declaratory relief that sought to prevent enforcement of article VI, section 4(b) of the Florida Constitution, which limits the number of consecutive terms for which certain candidates for state offices can appear on the ballot. Appellants, who are registered voters residing in the state senate districts of Senators Thomas, Kirkpatrick and Hargrett, appealed to the First District Court of Appeal, which invoked this Court's pass-through jurisdiction for issues of great public importance requiring immediate resolution by this Court. We have jurisdiction. See art. V, § 3(b)(5), Fla. Const.

FACTS

In 1992, the citizens of this State amended the Florida Constitution to include article VI, section 4(b). This amendment limits the number of consecutive terms of office for state legislators, federal legislators, the Lieutenant Governor and members of the Florida cabinet. It provides, in pertinent part, that no person may appear on the ballot for reelection to any of these offices "if, by the end of the current term of office, the person will have served (or, but for resignation, would have served) in that office for eight consecutive years."²

This amendment was placed on the ballot via a citizens' initiative petition, pursuant to article XI, section 3, Florida Constitution, which reserves to the people of this State "[t]he power to propose the revision or amendment of any portion or portions of th[e] constitution by initiative ... provided that, any such revision or amendment... shall embrace but one subject and matter directly connected therewith." The citizens' initiative petition explained the purpose and goals of the initiative petition:

The people of Florida believe that politicians who remain in office too long may become preoccupied with re-election and become beholden to special interests and bureaucrats, and that present limitations on the President of the United States and Governor of Florida show that term limitations can increase voter participation, citizen involvement in government, and the number of persons who will run for elective office.

Advisory Opinion to the Attorney General —Limited Political Terms in Certain Elective Offices, 592 So.2d 225, 226 (Fla. 1991) (hereinafter Limited Political Terms) (quoting citizens' petition). To meet these goals, the petition requested that the Florida Constitution be amended "to the extent permitted by the Constitution of the United States." Id. The initiative petition contained a severability clause providing that:

If any portion of this measure is held invalid for any reason, the remaining portion of this measure, to the fullest extent possible, shall be severed from the void portion and given the fullest possible force and application. The people of Florida declare their intention that persons elected to offices of public trust will continue voluntarily to observe the wishes of the people as stated in this initiative in the event any provision of this initiative is held invalid.

Id.

The constitution and laws of this state require that every citizens' initiative petition be submitted to this Court for an opinion on its compliance with article XI, section 3 and section 101.161, Florida Statutes (1997). See art. IV, § 10, Fla. Const.;³ § 16.061(1), Fla. Stat. (1997).⁴ Article XI, section 3, dictates that any amendment placed on the ballot via citizen's initiative petition "shall embrace but one subject and matter directly connected therewith." Section 101.161(1) requires that when an amendment is submitted to the voters, the substance of the amendment must appear on the ballot in "clear and unambiguous language," not exceeding 75 words, explaining the "chief purpose" of the measure. The measure must also include a ballot title not exceeding 15 words. See id.

Regarding the single-subject requirement, we explained in Limited Political Terms that a "proposed amendment meets the single-subject requirement if it has `a logical and natural oneness of purpose.'" 592 So.2d at 227 (quoting Fine v. Firestone, 448 So.2d 984, 990 (Fla.1984)). Stated differently, we explained that a proposed amendment is valid if it may be "logically viewed as having a natural relation and connection as component parts or aspects of [this] single dominant plan or scheme." Id. As we explained in Fine, "the single-subject restraint on constitutional change by initiative proposals is intended to direct the electorate's attention to one change which may affect only one subject and matters directly connected therewith." 448 So.2d at 989.

The majority of the Court held in Limited Political Terms that the proposed amendment complied with article XI, section 3, concluding that the amendment addressed the "sole subject" of "limiting the number of consecutive terms that certain elected public officers may serve." 592 So.2d at 227. In so holding, we adhered to our requirement in Fine of "strict compliance with the single-subject rule in the initiative process for constitutional change." 448 So.2d at 989.

In Limited Political Terms, we also reviewed the ballot title and summary for the amendment to assure compliance with the statutory ballot summary requirements. The ballot summary stated as follows:

LIMITED POLITICAL TERMS IN CERTAIN ELECTIVE OFFICES

Limits terms by prohibiting incumbents who have held the same elective office for the preceding eight years from appearing on the ballot for re-election to that office. Offices covered are: Florida Representative and Senator, Lieutenant Governor, Florida Cabinet, and U.S. Senator and Representative. Terms of office beginning before approval are not counted.

Limited Political Terms, 592 So.2d at 228 (quoting ballot title and summary). The Court found that this ballot title and summary satisfied the requirement that it be "fair and advise[d] the voter sufficiently to enable him [or her] intelligently to cast his [or her] ballot," as we have interpreted section 101.161 to require. Id. at 228 (quoting Askew v. Firestone, 421 So.2d 151, 155 (Fla.1982)). Accordingly, the amendment was placed on the ballot.

The amendment was approved by the electorate in the 1992 elections.⁵ Three years later, in 1995, the United States Supreme Court issued its decision in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995), holding that state attempts to restrict candidacy for membership in either house of the United States Congress violate the Qualifications Clause of the Tenth Amendment to the United States Constitution and are therefore unconstitutional.

Thereafter, appellants brought this complaint for declaratory and injunctive relief requesting that the trial court strike the entire amendment.⁶ Both parties filed motions for summary judgment asserting that there was no material issue of fact. The trial court rejected the attack on the amendment and granted appellee's motion for summary judgment. On appeal, appellants argue that the trial court was in error and that the entire amendment must be stricken because: (1) the unconstitutional portions relating to federal legislators cannot be severed from the remainder of the amendment; and (2) the amendment violates the First and Fourteenth Amendments to the United States Constitution. The amici curiae⁷ arguing in support of appellants also assert that we should revisit our earlier decision in Limited Political Terms and strike the amendment because it actually encompasses more than one subject.

SEVERABILITY

We begin our analysis with two uncontroverted facts. First, there is no question but that, based on the United States Supreme Court's opinion in Thornton, section 4(b)(5) and (6) of article VI, placing limits on the terms of the U.S. Representatives and U.S. Senators, are unenforceable as violative of the United States Constitution's Qualifications Clause. See Advisory Opinion to the Attorney General re Term Limits Pledge, 718 So.2d 798, 801 n. 1. (Fla.1998) (hereinafter Term Limits Pledge); Thornton, 514 U.S. at 837-38, 115 S.Ct. 1842. Second, there is no question but that nearly 77% of those voting on the amendment approved it. See supra note 5.

Whether the doctrine of severability applies to constitutional provisions is a question of first impression in this state, although the doctrine has been applied by this Court to legislative enactments. See, e.g., Smith v. Department of Ins., 507 So.2d 1080, 1089 (Fla.1987). Severability is a judicial doctrine recognizing the obligation of the judiciary to uphold the constitutionality of legislative enactments where it is possible to strike only the unconstitutional portions. See State v. Calhoun County, 126 Fla. 376, 383, 170 So. 883, 886 (1936). This doctrine is derived from the respect of the judiciary for the separation of powers, and is "designed to show great deference to the legislative prerogative to enact laws." Schmitt v. State, 590 So.2d 404, 415 (Fla.1991).

The severability analysis answers the question of whether "the taint of an illegal provision has infected the entire enactment, requiring the whole unit to fail." Schmitt, 590 So.2d at 414....