Close encounters of the referendum kind.

• Author: Marshall, J. Michael
• Position: Real Property, Probate and Trust Law

Florida's voters have been asked to decide whether they should have the final say on all comprehensive planning decisions. The question has been presented by way of a proposal to amend the Florida Constitution. The text of the proposed amendment reads as follows:

Public participation in local government comprehensive land use planning benefits the conservation and protection of Florida's natural resources and scenic beauty, and the long-term quality of life of Floridians. Therefore, before a local government may adopt a new comprehensive land use plan, or amend a comprehensive land use plan, such proposed plan or plan amendment shall be subject to vote of the electors of the local government by referendum, following preparation by the local planning agency, consideration by the governing body as provided by general law, and notice thereof in a local newspaper of general circulation. Notice and referendum will be as provided by general law. This amendment shall become effective immediately upon approval by the electors of Florida.

On November 2, 2010, the proposal will appear as Amendment 4 on the ballot for the statewide general election. (1)

Hometown Democracy's Initiative

Amendment 4's journey to the ballot box began in 2003 when a group called Hometown Democracy, Inc., started the citizen initiative process of amending the state constitution. Since that time, a significant amount of public discourse has been generated regarding the merits of the proposal. (2) However, less attention has been given to the text of the proposed amendment even though the text raises several important legal questions. As discussed below, these questions bear directly on whether Amendment 4 sufficiently lays out a means by which its intended purpose can be achieved.

The Power of the People

Amendment 4 purports to infuse direct citizen approval into Florida's existing process of adopting local comprehensive plans and plan amendments. If approved, Amendment 4 would strip each local representative body of the power to make decisions on comprehensive planning matters because the electorate would not be bound to such decisions under Amendment 4. Regardless of the data, analysis, and technical review that may go into a comprehensive planning proposal, the ultimate decision would lie with the electorate. As such, Amendment 4 proposes a form of direct democracy in the context of comprehensive planning.

* Democracy in the United States --A direct democracy consists of citizens who vote directly on the establishment of laws and policies. The concept dates back to the city-states of Ancient Greece, and in its purest form, there is no representation. Legislatures are unnecessary in a pure direct democracy because laws originate with the people and are adopted by simple majority approval.

For many people, direct public participation and majority rule constitute the bedrock upon which the American brand of government resides. Hometown Democracy promotes that exact view by stating that Amendment 4 will "put[] the people back in charge...." (3) The historical record does show that people of Colonial America submitted petitions and proposed ordinances that were approved by referenda, most notably in the New England town halls. (4) It is also true that when the American colonists declared their independence, they sought a government "instituted among Men, deriving [its] just powers from the consent of the governed." (5) The United States Constitution begins with the phrase, "We the people...." (6)

However, the United States is a constitutional republic, not a direct democracy. The Founding Fathers were well aware that "men are not angels," and they harbored a healthy distrust of majorities, the factions that inevitably manifest from within, and the havoc they create in a pure democratic system. As James Madison --who is most often credited as the architect of the U.S. Constitution --explained:

There are particular moments in public affairs when the people stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament. (7)

The Founding Fathers were less concerned about minority factions because while such groups may "convulse the society," they would be "unable to execute ... their violence under the forms of the Constitution." (8) Rather, it was the transient, often imprudent, and almost always tyrannical nature of an impassioned majority--what Madison called the "mischief of faction"--that posed the greatest threat to individual rights, minority interests, and the public good. (9) The Founding Fathers purposely chose a representative form of government as a means to filter majority preferences through the disciplined processes of an elected legislature, and then made it virtually impossible under the U.S. Constitution for the public to directly participate in lawmaking. (10)

* Democracy in the States--U.S. Const. art. IV, [section] 4 "guarantee[s] to every State in this Union a Republican Form of Government." (11) Known as the Guarantee Clause, the provision seems to invalidate any product of direct democracy even though many state constitutions reserve the powers of initiative and referendum to the people. The Guarantee Clause has rarely been the subject of litigation, and while a full discussion of the clause is unnecessary for purposes of this article, it is relevant to note that in those few cases in which enforcement was sought, courts have usually ruled that the issues presented were political and not within their powers to adjudicate. However, the U.S. Supreme Court has suggested more recently that the Guarantee Clause could be enforced under certain circumstances. (12) Perhaps a reasonable interpretation of the Guarantee Clause is that the states may experiment in forms of direct democracy as long as they do not supplant the legislature's role, serving only in an ancillary or complimentary capacity. (13)

* Forms of Initiatives and Referenda --In any event, elements of pure democracies can be found at the state and local levels throughout the nation, although not always in the same form. For instance, initiatives come in two forms. A "direct initiative" is one by which a sponsor circulates a petition proposing a certain measure and if a predetermined number of signatures are obtained, then the people vote on it. The process unfolds without the consent of the legislature. Amendment 4 is a direct initiative. An "indirect initiative" is one by which a sponsor submits a petition to the legislature, and a referendum is held only if the legislature fails to adopt it. In either case, the initiative operates as a substitute for the legislative process. (14)

A referendum occurs when legislation is referred to the people for their approval. (15) A referendum does not bypass the legislative process, but like the initiative, it comes in different forms. A "mandatory referendum" occurs when a legislative enactment must be approved by referendum. In contrast, a "voluntary referendum" occurs only if the legislature chooses to refer a piece of legislation to the electorate. Finally, with a "popular referendum," the electorate is given the opportunity to submit a petition and thereby force the referral of a previously enacted legislative measure to a vote by the people. (16)

Initiatives and Referenda in Florida

The discussion thus far has been provided only because Amendment 4 should be viewed in light of the fact that the United States is not a pure democracy, and plebiscite (17) rule is not the default standard. Simply put, the power of initiative and referendum is not boundless and untapped, waiting only for the people to unilaterally decide when and how it should be employed. While people in some states enjoy the powers of initiative and referendum, they may be exercised only in accordance with the laws of each particular state.

* The Florida Constitution--The original Florida Constitution (1838) did not reserve the power initiative and referendum, mirroring the federal constitution in that respect. (18) Subsequent versions (1865 and 1868) did not include any such reservation either. (19) Then, during the late 1800s, elements of direct democracies, such as the initiative, referendum, and recall processes, emerged at the state and local levels. (20) Although this trend was most evident in the western frontier states, it soon made its way to Florida.

In 1885, Florida's fourth constitution was ratified, and therein the people reserved the power of initiative and referendum. The reservation was limited, however, for certain circumstances, such as when amending the constitution, issuing government bonds, consenting to local government taxation, or passing special or local acts. (21)

Eventually, the reservation was expanded. The Constitution of 1968 begins by stating in art. 1, [section] 1 that "[a]ll political power is inherent in the people. The enunciation herein of certain rights shall not be construed to deny or impair others retained by the people." The Florida Supreme Court has held that this general reservation of political power includes the powers of initiative and referendum. (22)

However, the people did not decide how or when the power of referendum would be exercised. Instead, the people delegated that responsibility to the legislature by providing that "[s]pecial elections and referenda shall be held as provided by law." (23) The directive "as provided by law" is important because for purposes of interpreting the state constitution, "as provided by law" means "as enact[ed] by the State Legislature ... --not by a City Commission or any other political body." (24) The Florida Supreme Court has even explained: "Once the referendum power is reserved, particularly as done in our current constitution, this power can be exercised whenever the people through their legislative bodies...