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Our View: Amendments 1, 3, 5, 8, 12

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  • | 4:00 a.m. October 10, 2012
  • Longboat Key
  • Opinion
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When we began this process of analyzing the 11 proposed state constitution amendments two weeks ago, we noted a preference that is probably true with most voters: Leave the constitution alone! Quit junking it up with special exceptions and favors to special groups. Would that state lawmakers would heed that call.

But it is what it is. Voters once again are faced with too many amendments, some of them eye- and brain-numbing in their language but also full of potentially important consequences.

The commentary that follows is intended to enlighten on what’s behind the often-confusing wording.

At the same time, we’ll repeat: The litmus test for us hinges on one question: Will the amendment increase individual freedom? If it does, vote yes. If not, vote no. If it limits government, it will increase freedom. If it reduces taxation, it will increase freedom.

Amendment 1
Health care services
Proposing an amendment to the state constitution to prohibit laws or rules from compelling any person or employer to purchase, obtain, or otherwise provide for health care coverage; permit a person or an employer to purchase lawful health care services directly from a health care provider; permit a health care provider to accept direct payment from a person or an employer for lawful health care services; exempt persons, employers, and health care providers from penalties and taxes for paying directly or accepting direct payment for lawful health care services; and prohibit laws or rules from abolishing the private market for health care coverage of any lawful health care service. Specifies that the amendment does not affect which health care services a health care provider is required to perform or provide; affect which health care services are permitted by law; prohibit care provided pursuant to general law relating to workers’ compensation; affect laws or rules in effect as of March 1, 2010; affect the terms or conditions of any health care system to the extent that those terms and conditions do not have the effect of punishing a person or an employer for paying directly for lawful health care services or a health care provider for accepting direct payment from a person or an employer for lawful health care services; or affect any general law passed by two-thirds vote of the membership of each house of the Legislature, passed after the effective date of the amendment, provided such law states with specificity the public necessity justifying the exceptions from the provisions of the amendment. The amendment expressly provides that it may not be construed to prohibit negotiated provisions in insurance contracts, network agreements, or other provider agreements contractually limiting co-payments, coinsurance, deductibles, or other patient charges.

Clearly this is the Legislature’s revolt against Obamacare.

Unfortunately, it’s a moot point. Even if Florida voters overwhelmingly adopt this amendment, it will be for naught.

Reason: Federal law pre-empts and takes precedence over state law, thanks to the supremacy clause (Article VI, Section 2).

State lawmakers knew this when they voted to put it on the ballot. They didn’t know the Supreme Court would rule that Obamacare was a constitutional “tax,” but they knew whatever Washington adopted, it would supersede state law.

So why even put it on the ballot? As one lawmaker told us, “It’s the Legislature’s strong statement that we opposed Obamacare.” It’s sending a message.

Well, let’s send a message to Tallahassee, too. While we generally oppose cluttering Florida’s constitution with goofy, unnecessary amendments, Amendment 1 delivers a forceful message of freedom. Look at it this way: It also will prevent our own Legislature from adopting a state version of Obamacare.

Recommendation: Yes.

Amendment 3
State government revenue limitation.
This proposed amendment to the state constitution replaces the existing state revenue limitation based on Florida personal income growth with a new state revenue limitation based on inflation and population changes. Under the amendment, state revenues, as defined in the amendment, collected in excess of the revenue limitation must be deposited into the budget stabilization fund until the fund reaches its maximum balance, and thereafter shall be used for the support and maintenance of public schools by reducing the minimum financial effort required from school districts for participation in a state-funded education finance program, or, if the minimum financial effort is no longer required, returned to the taxpayers. The Legislature may increase the state revenue limitation through a bill approved by a super majority vote of each house of the Legislature. The Legislature may also submit a proposed increase in the state revenue limitation to the voters. The Legislature must implement this proposed amendment by general law. The amendment will take effect upon approval by the electors and will first apply to the 2014-2015 state fiscal year.

In 1994, Florida voters approved an amendment that limited state spending to grow no faster than personal incomes.

It was a good intention. But it was worthless. It did little to cap state spending.

Amendment 3 proposes a different — and better — measurement to cap the growth in annual state spending: It cannot exceed the combined growth of inflation and population growth.

And while many liberal intellectuals hate these kinds of restrictions, Amendment 3 has a few other nice features. If Florida’s economy is so strong that it produces tax revenue that exceeds the state-spending limit, that excess cash must go in one of three places: a rainy-day fund; Florida schools; or back to taxpayers.

There is no need to go into great depth on the pros and cons and formulae for this amendment. Suffice it to say: Anything that puts a handcuff on lawmakers’ ability to spend is a boost for freedom.

Recommendation: Yes.

State courts
Proposing a revision of Article V of the state constitution relating to the judiciary. The state constitution authorizes the Supreme Court to adopt rules for the practice and procedure in all courts. The constitution further provides that a rule of court may be repealed by a general law enacted by a two-thirds vote of the membership of each house of the Legislature.

This proposed constitutional revision eliminates the requirement that a general law repealing a court rule pass by a two-thirds vote of each house, thereby providing that the Legislature may repeal a rule of court by a general law approved by a majority vote of each house of the Legislature that expresses the policy behind the repeal. The court could re-adopt the rule in conformity with the public policy expressed by the Legislature, but if the Legislature determines that a rule has been re-adopted and repeals the re-adopted rule, this proposed revision prohibits the court from further re-adopting the repealed rule without the Legislature’s prior approval.

Under current law, rules of the judicial nominating commissions and the Judicial Qualifications Commission may be repealed by general law enacted by a majority vote of the membership of each house of the Legislature. Under this proposed revision, a vote to repeal those rules is changed to repeal by general law enacted by a majority vote of the legislators present.

Under current law, the governor appoints a justice of the Supreme Court from a list of nominees provided by a judicial nominating commission, and appointments by the governor are not subject to confirmation. This revision requires Senate confirmation of a justice of the Supreme Court before the appointee can take office. If the Senate votes not to confirm the appointment, the judicial nominating commission must reconvene and may not renominate any person whose prior appointment to fill the same vacancy was not confirmed by the Senate.

For the purpose of confirmation, the Senate may meet at any time. If the Senate fails to vote on the appointment of a justice within 90 days, the justice will be deemed confirmed and will take office.

The Judicial Qualifications Commission is an independent commission created by the state constitution to investigate and prosecute before the Florida Supreme Court alleged misconduct by a justice or judge. Currently under the constitution, commission proceedings are confidential until formal charges are filed by the investigative panel of the commission. Once formal charges are filed, the formal charges and all further proceedings of the commission are public.

Currently, the constitution authorizes the House of Representatives to impeach a justice or judge. Further, the Speaker of the House of Representatives may request, and the Judicial Qualifications Commission must make available, all information in the commission’s possession for use in deciding whether to impeach a justice or judge. This proposed revision requires the commission to make all of its files available to the Speaker of the House of Representatives but provides that such files would remain confidential during any investigation by the House of Representatives and until such information is used in the pursuit of an impeachment of a justice or judge.

This revision also removes the power of the governor to request files of the Judicial Qualifications Commission to conform to a prior constitutional change. This revision also makes technical and clarifying additions and deletions relating to the selection of chief judges of a circuit and relating to the Judicial Qualifications Commission and makes other nonsubstantive conforming and technical changes in the judicial article of the constitution.

Here’s a good bet: This amendment will be resoundingly defeated — even though voters should approve it.
The sheer length and complexity of it guarantee its defeat.

Nonetheless, we’ll try to simplify it, so you at least know on what you’re voting.

First, a little background: This amendment is a second attempt, led by outgoing Speaker of the House Dean Cannon. Irked by the Florida Supreme Court’s denial in 2010 of putting what is now Amendment 1 (the anti-Obamacare amendment) on the 2010 ballot, among other amendments, Cannon and other lawmakers felt the High Court’s majority had crossed the line — into lawmaking and not just interpreting the law.

If truth be told, the lawmakers were right. Thus, Amendment 5. Its title probably would be more accurate if it were called the “Back at You!” Amendment.

There are three parts:
1) Rulemaking
2) The confirmation of state Supreme Court justices
3) Sharing files of alleged judicial misconduct with the House of Representatives.

• Rulemaking: State lawmakers involved in crafting this amendment are usually most passionate about this portion. They explain it this way:

As the law and constitution now stand, Florida’s Supreme Court not only has the power to rule over disputes in the courtroom, it has almost unlimited authority to make the rules on how the state courts operate. Lawmakers say there are too few checks on the High Court.

Amendment 5 proposes to rein in the High Court’s rulemaking powers and give the Legislature almost the same powers as Congress has over the federal courts’ rulemaking.

Rather than require a two-thirds vote of the Legislature to repeal a Supreme Court rule on how the courts operate, as is now required, Amendment 5 would reduce that threshold to only a majority in the Senate and House.

This is good; it will place more of a limit on the High Court’s power — a better check and balance than now exists.

• Senate approval for Supreme Court justice appointees. Current law allows Florida’s governor to appoint Supreme Court justices. Amendment 5 proposes to adopt the federal system — to require Senate approval of state Supreme Court justices.

This would not be new to Florida. From 1868 to 1885, the state constitution required Senate confirmation. But in 1976, Florida voters decided to let the governor only appoint the justices.

Some voters may be reluctant to requiring Senate approval of High Court justices because of the judicial “Borking” that occurs with the U.S. Supreme Court selections. But American government is all about checks and balances. What’s more, given some of the High Court selections we have seen over the past 30 years, Floridians should welcome the vetting by governors and the Senate.

• Judicial investigation file sharing. Florida Bar members don’t like the idea of handing over to the speaker of the House investigative files on alleged judicial misconduct — at least not until the misconduct is confirmed. That’s the way the law is now.

This amendment, however, would give the speaker access to investigative files prior to any formal charges being filed rather than after the charges are filed. This material would be required to remain confidential, but at least it would allow the House of Representatives to know if the judicial investigators, under the Judicial Qualifications Commission, are covering up meritorious complaints.

You’ll hear opponents of Amendment 5 say it will allow legislators to meddle in state court affairs. Our view is it will add more checks, balances and limits on what has become an overly “legislative” and activist Florida court.

Recommendation: Yes.

Religious freedom
There shall be no law respecting the establishment of religion or prohibiting or penalizing the free exercise thereof. Religious freedom shall not justify practices inconsistent with public morals, peace, or safety. Except to the extent required by the First Amendment to the United States Constitution, neither the government nor any agent of the government may deny to any individual or entity the benefits of any program, funding or other support on the basis of religious identity or belief.

Like Amendment 6 (the abortion-funding amendment), this one is a high-voltage wire. It touches that ultra-sensitive subject of church and state and whether tax dollars can be used for services provided by faith-based organizations.

The crux of this amendment are the final 33 words, starting with “neither the government nor any agent of the government may deny…”

That final phrase is intended to replace the last sentence of Article 1, Section 3 of the Florida Constitution, which currently reads:

“No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect or religious denomination or in aid of any sectarian institution.”

Amendment 8 proposes the opposite, reversing a mandate that has stood in Florida’s constitution since 1885.

Anti-school-voucher groups, including Florida’s teacher unions, are vigorously opposing this amendment. Their argument follows the strict dogma of the separation between church and state and their job-protection stance that it’s wrong to let students purchase a private-school education with vouchers that equal what would be spent on those students in public schools. Likewise, they oppose tax dollars being used on services provided by church-based homeless shelters, soup kitchens, substance-abuse programs, hospitals and similar organizations.

But here’s news for these opponents: There already are existing federal and state programs involving the use of public funds for scholarships, enabling students to attend church-operated schools ranging from the voluntary pre-kindergarten program to church-affiliated colleges and universities attended by students who receive Bright Futures scholarships.

Catholic St. Leo University north of Tampa for years has educated Florida college kids eligible for state funds but who have been unable to get into one of the state universities because they’re overcrowded.

Does that constitute “aiding” a church? Of course not; it’s aiding the student.

What about all those ex-soldiers who have used their GI Bill funds to attend Catholic universities. Is that aiding the church? Of course not.

If the state provides funding for ex-inmates to attend a faith-based drug rehabilitation center that is improving lives and helping them avoid recidivism, is that “aiding” a sectarian institution?

Of course not. It’s aiding the ex-inmate and aiding society — and it’s doing so as a peaceful, mutually beneficial, fair exchange of fee for service. The intent is not to aid the institution; it’s to provide aid to the recipients.

To be sure, tax dollars should not subsidize or fund religious organizations for their benefit. Amendment 8, however, would bring enlightement and common sense to the often misinterpreted separation between church and state.

Recommendation: Yes.

Appointment of student body president to board of governors of the state university system.
Proposing an amendment to the state constitution to replace the president of the Florida Student Association with the chair of the council of state university student body presidents as the student member of the Board of Governors of the State University System and to require that the Board of Governors organize such council of state university student body presidents.

What, you may rightly ask, is this doing on the ballot as part of the state constitution?

This amendment wouldn’t be on the ballot were it not for the provision in the constitution creating a Board of Governors to oversee the state’s university system and requiring one of those BOG members to be the president of the Florida Student Association (FSA).

Be that as it may, it’s on the ballot.

The amendment proposes to change the university system’s student representative on the BOG from the president of the Florida Student Association to the chair of a council of state university student body presidents.

What’s the difference?

The Florida Student Association currently is a not-for-profit advocacy and research group that consists of the student body presidents and their staffs from all of the state universities — except Florida State University. While FSA presumably represents all university students’ interests, you can say it’s akin to being the students’ version of AARP.

Over the years, FSU has declined to pay the dues to join the FSA because of disputes over the way the organization has operated.

The amendment would allow FSU’s student body president to be among the council of student body presidents, and thus, eligible to serve on the Board of Governors.

This seems like much ado about inside baseball and petty politics at the university level. But it makes sense that, if all university students are to have a representative voice on the Board of Governors, all universities should be included. That representation should not hinge on whether you’re a dues-paying member to a lobbying group. It almost sounds like union rules.

Recommendation: Yes.

Providing timetable for proposed charter amendment referendum; effective date of voter-approved amendments.

Shall subsection 7.1 be amended providing: (a) referendum for Charter amendments proposed by citizen initiative, County Commission, Legislature held at next general election rather than within 60 days after filing, provided amendment filed with County Commission 120 days before election, (b) referendum for amendments proposed by Charter Review Board held at next general election, rather than next countywide election, provided proposed amendment filed with County Commission 120 days before election; (c) amendments effective upon certification of election results.

There are no hidden agendas behind this amendment. It just makes sense. It will save Sarasota County taxpayers the $450,000 cost of conducting special charter-amendment elections, allowing the county to place such amendments on the ballots of the next closest general election.
Recommendation: Yes.

Density referenda
1) May the Town allow conversion to residential use, with a maximum of six (6) dwelling units per acre, the property located at 5440 Gulf of Mexico Drive (currently zoned C-1, Limited Commercial), comprising approximately 0.76-acres legally described as Lot C-1 of Plat for Cedar Woodlands Subdivision, a replat of Lot 22, Subdivision on Longboat Key, as recorded in Plat Book 7, Page 16, Public Records of Manatee County, Fla.

2) May the Town allow conversion to residential use, with a maximum residential density not to exceed six (6) dwelling units per acre, for the property located at 521 Broadway Street, currently zoned C-1, Limited Commercial, comprising approximately 0.44-acres.

Longboat Key’s charter prevents increasing the residential density on the island without a public referendum. Voting “yes” on these two amendments — the last questions on Longboat ballots — would allow the property owners to convert their properties from unusable commercial use to residential use. This would allow them to improve their property and improve the look and value of the Key.

Recommendation: Yes.


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