Revising the role of the Florida Supreme Court in consitutional initiatives.

• Author: Turner, Susan L.
• Position: Florida

The upcoming Constitution Revision Commission will consider and propose amendments and revisions to the Florida Constitution of 1968, as amended.(1) The commission will almost certainly review the constitutional initiative process,(2) and may conclude that change is in order--perhaps substantial change. Whether the electorate is willing to change its cherished right to amend or revise its organic law is quite another question, but over the years many judges and commentators have called for changes in the initiative process. Those seeking change have several goals: To prevent a California-style flood of initiatives; to protect the state's organic legal document from change reflecting current but transient political correctness; and to preserve the right of initiative in the face of drafters' not-infrequent inability to prepare clear, accurate, and valid proposals, titles, and ballot summaries.(3) The Florida Supreme Court could address all of these issues if it had an expanded role in the constitutional initiative process.

The Way It Is

Art. XI, [sections] 3 of the Florida Constitution gives the people of Florida the exclusive power to "propose the revision or amendment of any portion or portions of this constitution by initiative." After "the people" invoke this power and satisfy certain other constitutional(4) and statutory(5) requirements, the Secretary of State of Florida certifies that the requirements have been satisfied.(6) The Attorney General of Florida is then required to "request the opinion of the justices of the supreme court as to the validity of any initiative petition circulated pursuant to Section 3 of Article XI."(7) The Attorney General sends a letter to the Florida Supreme Court setting forth the proposed initiative, discussing its compliance with the legal requirements, and formally requesting the court's opinion on the validity of the petition.

Once a constitutional initiative reaches the Florida Supreme Court, the justices are required, "subject to their rules of procedure, [to] permit interested persons to be heard on the questions presented and [to] render their written opinion expeditiously."(8) The constitution also requires the court to "render an advisory opinion of the justices, addressing issues as provided by general law."(9) The Florida Supreme Court has almost always limited its initiative decisions to two issues: Whether the proposal satisfies the single-subject rule of Art. XI, [sections] 3 of the Florida Constitution; and whether the proposal satisfies the ballot title and summary requirements of F.S. [sections] 101.161.(10) As a result of this limited review, a constitutional initiative that is unconstitutional under either the federal or Florida Constitution (or both), or that is more legislative than constitutional in nature, or that suffers from some other defects, may...