State ex rel. Citizens Proposition for Tax Relief v. Firestone, 59466

• Decision Date: 25 July 1980
• Docket Number: No. 59466,59466
• Citation: 386 So.2d 561
• Parties: STATE of Florida ex rel. CITIZENS PROPOSITION FOR TAX RELIEF, Edward E. Havill, and Alphonso Bruno, Petitioners, v. George FIRESTONE, Secretary of State of the State of Florida, Respondent.
• Court: Florida Supreme Court

Page 561

386 So.2d 561

STATE of Florida ex rel. CITIZENS PROPOSITION FOR TAX RELIEF, Edward E. Havill, and Alphonso Bruno, Petitioners, v. George FIRESTONE, Secretary of State of the State of Florida, Respondent.

No. 59466.

Supreme Court of Florida.

July 25, 1980.

J. Elliott Messer, John H. French, Jr. and James C. Hauser of Thompson, Messer, Rhodes, Vickers & Hart, Tallahassee, for petitioners.

Jim Smith, Atty. Gen. and Gerald B. Curington, Asst. Atty. Gen., Tallahassee, for respondent.

OVERTON, Justice.

By an original proceeding in mandamus petitioners seek relief from the provisions of section 100.371, Florida Statutes (1979), and Rule 1C-7.091, Florida Administrative Code. These provisions require any person desiring to place a constitutional amendment on the ballot by initiative to submit the required signatures of electors to the appropriate supervisors of elections no later than 122 days prior to a general election, rather than ninety days allegedly required in article XI, section 5, Florida Constitution. The asserted effect of the rule and the statute is to shorten the time available for obtaining the necessary signatures before the subject election.

The primary issue is the legal validity of the statute and rule, which mandate the submission of signatures for an initiative petition to place a constitutional amendment on the ballot thirty-two days prior to the ninetieth day prior to the general election, for the avowed purpose of verifying these signatures. We exercise our discretion to accept jurisdiction upon this constitutional question which requires no evidentiary findings or hearing. Art. V, § 3(b)(8), Fla. Const. We find the implementing rule unconstitutional to the extent it changes the date for filing an initiative petition.

The authority to amend the Florida Constitution by an initiative petition is contained in article XI, section 3, which provides:

Initiative. 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 percent 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.

It is part of a constitutional design which prescribes four distinct and separate methods to amend the constitution. ¹

In accordance with section 5 of article XI, a constitutional proposal by initiative petition as well as by the legislature or a constitutional convention "shall be submitted to the electors at the next general election held more than ninety days after" such a proposal "is filed with the secretary of state." For clarity of discussion, article XI, section 5, is set forth in its entirety as follows:

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 or constitutional convention proposing it is filed with the secretary of state, unless, pursuant to law enacted by the affirmative vote of three-fourths 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.

(b) Once in the tenth week, and once in the sixth week immediately preceding the week in which the election is held, the proposed amendment or revision, with notice of the date of election at which it will be submitted to the electors, shall be published in one newspaper of general circulation in each county in which a newspaper is published.

(c) If the proposed amendment or revision is approved by vote of the electors, it shall be effective as an amendment to or revision of the constitution of the state on the first Tuesday after the first Monday in January following the election, or on such other date as may be specified in the amendment or revision. (Emphasis added.)

In 1979 the legislature established procedures for placing constitutional amendments on the ballot by initiative petition, through the enactment of section 100.371, Florida Statutes (1979), which provides:

Initiatives; procedure for placement on ballot.

(1) Constitutional amendments proposed by initiative shall be placed on the ballot for the general election occurring in excess of 90 days from the certification of ballot position by the Secretary of State.

(2) Such certification shall be issued when the Secretary of State has received verification certificates from the supervisors

of elections indicating that the requisite number and distribution of signatures of electors have been submitted to and verified by the supervisors.

(3) The sponsor of an initiative amendment shall, prior to obtaining any signatures, register as a political committee pursuant to s. 106.03 and submit the text of the proposed amendment to the Secretary of State, with the form on which the signatures shall be affixed, and shall obtain the approval of the Secretary of State of such form. The Secretary of State shall promulgate rules pursuant to s. 120.54 prescribing the style and requirements of such form.

(4) The sponsor shall submit signed forms to the appropriate supervisor of elections for verification as to the number of registered electors whose signatures appear thereon. The supervisor shall promptly verify the signatures upon payment of the fee required by s. 99.097. Upon completion of verification, the supervisor shall execute a certificate indicating the total number of signatures checked, the number verified as being of registered electors, and the distribution by congressional district. This certificate shall be immediately transmitted to the Secretary of State. The supervisor shall retain the signature forms for at least 1 year.

(5) The Secretary of State shall determine from the verification certificates received from supervisors of elections the total number of verified signatures and distribution of such signatures by congressional districts. Upon a determination that the requisite number and distribution of signatures have been obtained, the secretary shall issue a certificate of ballot position for that proposed amendment and shall assign a designating number pursuant to s. 101.161. A petition shall be deemed to be filed with the Secretary of State upon the date of the receipt by the secretary of a certificate or certificates from supervisors of elections indicating the petition has been signed by the constitutionally required number of electors.

(6) The Department of State shall have the authority to promulgate rules in accordance with s. 120.54 to carry out the provisions of this section. (Emphasis added.)

We note that section (1) requires certification of the ballot position by the secretary of state "in excess of ninety days" from the general election. Further, in accordance with subsection (5), "certification" cannot be accomplished without verification of the electors who are signatories on the petition by the supervisors of elections in the identified congressional districts. It is uncontroverted that the legislature has directed that an initiative petition may not be filed until the verification certificates have been received from the various supervisors of elections by the secretary of state.

This statute was implemented by the department of state in its promulgation of rule 1C-7.091, Florida Administrative Code, which provides:

Constitutional Amendment Initiative Petition. Submission Deadline; Checking Electors' Signatures.

(1) Initiative petitions containing signatures proposing constitutional amendments to the Florida Constitution shall be submitted to the Supervisor of Elections in the county in which they were circulated to be checked.

(2) Petitions submitted pursuant to subsection (1) shall be provided to the appropriate Supervisors of Elections no later than 5 p. m. of the 122nd day prior to the General Election in which the constitutional amendment is to be placed upon the ballot.

(3) Upon receipt of initiative petitions the Supervisor shall check the signatures on each petition to insure that each person signing said petition is a registered elector in that county.

(4) Upon completion of the verification as set forth in subsection 1C-7.091(3), a certificate shall be submitted to the Division of Elections of the Department of State by the Supervisor of Elections certifying the total number of signatures checked, the number verified as registered electors and the distribution by congressional district. The certificate shall be submitted no later than 5 p. m. of the 92nd day preceding the General Election. Any certificate received later than that time will not be eligible to be counted toward the required number of elector's (sic) signatures for any congressional district or the State as a whole. The Department will provide appropriate forms to the Supervisor of Elections to be used for transmission of the required information. In conjunction with the certificate submitted, each Supervisor of Elections shall submit a copy of one petition showing the text of the constitutional amendment to which the certified signatures relate.

(5) Upon receipt of a certificate from the Supervisor of Elections, the Department shall compile the total number of signatures verified as being registered electors to determine whether the requisite number of signatures has been obtained with respect to each constitutional amendment, by...