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Court tosses Amendment 9

By Jim Saunders
9/01/2010 © Health News Florida

The Florida Supreme Court on Tuesday rejected a proposed constitutional amendment that targeted the new federal-health reform law, ruling that state lawmakers included misleading wording that could not be fixed. 

Justices, in a 5-2 ruling, upheld a circuit judge's decision to strip "Amendment 9" from the November ballot. The court rejected state arguments that it could simply eliminate a ballot summary that included the disputed wording and let the rest of the proposal go before voters.

"In this case, the ballot language put forth by the party proposing the constitutional amendment contains misleading and ambiguous language,'' the main court opinion said. "Currently, our only recourse is to strike the proposed constitutional amendment from the ballot, thereby removing it from a vote of the electorate.''

The decision outraged Rep. Scott Plakon, a Longwood Republican who helped sponsor the proposed constitutional amendment during the spring legislative session. He vowed to bring back a revised proposal next year with the goal of putting it on the 2012 ballot.

"We will make adjustments, and I will be filing it on the first day we can file bills,'' Plakon said.

The Republican-controlled Legislature approved Amendment 9 primarily as an effort to allow people to opt out of a new federal requirement that they eventually buy health insurance or face financial penalties. In part, the proposal called for Floridians to not be forced by law to "participate in any health-care system.''

But four voters filed a lawsuit to challenge wording in a ballot summary that voters would see when they go to the polls. Leon County Circuit Judge Judge James O. Shelfer agreed with their arguments last month, describing the wording as "manifestly misleading" and tossing the amendment off the ballot.

The disputed summary wording said the amendment would "ensure access to health-care services without waiting lists, protect the doctor-patient relationship (and) guard against mandates that don't work.'' Shelfer said those broad claims were not backed up in the actual text of the amendment, which voters typically would not see when they cast ballots.

During Supreme Court arguments, an attorney for the state did not defend the wording. Instead, he asked the court to simply eliminate the ballot summary and put the full text of the amendment on the ballot --- a move that justices made in 2004 on another disputed ballot proposal.

But the court rejected that argument Tuesday, with Justices Peggy Quince, Jorge Labarga and James E.C. Perry signing an opinion that specifically said the 2004 opinion was" not consistent with a long line of cases involving proposed constitutional amendments."

"Our role in this process is as a reviewer of constitutional validity, not as an editor or author,'' the opinion said.

Justices Barbara Pariente and Fred Lewis also agreed to reject Amendment 9, though they did not sign onto the main opinion. Chief Justice Charles Canady and Justice Ricky Polston dissented.

Canady wrote an opinion saying the court should follow the lead of the 2004 case and the Legislature's desire for voters to cast ballots on Amendment 9.

"Whenever the Legislature proposes a constitutional amendment, it is overwhelmingly clear that the Legislature‘s objective is to give the people an opportunity to vote on the proposed amendment,'' Canady wrote. "Placing the full text of the proposed amendment on the ballot would undeniably be consistent with that objective. Failing to place the full text on the ballot undeniably defeats that objective.''

Plakon particularly criticized Quince, Pariente and Lewis, who allowed the 2004 amendment --- which dealt with parental notification of abortion --- to go on the ballot but rejected Amendment 9.

"These three judges, it's outrageous on their part,'' he said. "It's just an outrageous judicial power grab.''

But Mark Herron, an attorney for the four voters who challenged the amendment, said justices can't simply eliminate wording approved by the Legislature.

"The courts just don't have the power to rewrite amendments,'' he said.

--Capital Bureau Chief Jim Saunders can be reached at 850-228-0963 or by e-mail at