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Constitution Revision Commissions Avoid Logrolling, Don’t They?

Government Lawyer

Constitutional revision is not for the faint of heart.1 C ompared to the constitutional convention, that unique, 200-year-old invention of American political practice, the constitutional commission is of relatively recent vintage. It is only about a century old. In fact, in his 1887 Treatise on Constitutional Conventions, Judge John Alexander Jameson described the constitutional commission as “a novel device.”2

Some 90 years later, Albert L. Sturm offered the following observation:

Increasing use of the constitutional commission as an auxiliary device for initiating both major and minor changes is one of the most significant developments in the procedure of modernizing state constitutions. Constitutional commissions were developed initially, and have been used primarily, as auxiliary staff arms of state legislative assemblies. Their principal function has been to provide expert advice on constitutional problems and issues and to propose and draft amendments, revisions, and even entire constitutions. The 1968 Florida Constitution was the first state organic law to accord constitutional status to the commission as a formal method of proposing constitutional change.3

The 1968 Florida Constitution has more methods of amendment than any other state constitution.4 Article XI provides that the electorate may adopt revisions or amendments to the constitution in a general election.5 Amendments may be placed on the ballot by any of the following methods: 1) adoption of a joint resolution by three-fifths of the membership of the House and Senate;6 2) recommendation of the Constitution Revision Commission (commission), which meets every 20th year since 1978;7 3) citizen initiative;8 4) recommendation of a constitutional convention;9 and 5) recommendation of the Taxation and Budget Reform Commission, which meets every tenth year since 1980.10

Of particular note for this issue is the second.11 Paragraph (c) of Article XI, §2 of the constitution states, in toto,

Each constitution revision commission shall convene at the call of its chairman, adopt its rules of procedure, examine the constitution of the state, except for matters relating directly to taxation or the state budgetary process that are to be reviewed by the taxation and budget reform commission established in section 6, hold public hearings, and, not later than one hundred eighty days prior to the next general election, file with the secretary of state its proposal, if any, of a revision of this constitution or any part of it.12

F.S. §101.161 states, in pertinent part,

Whenever a constitutional amendment or other public measure is submitted to the vote of the people, the substance of such amendment or other public measure shall be printed in clear and unambiguous language on the ballot after the list of candidates, followed by the word “yes” and also by the word “no,” and shall be styled in such a manner that a “yes” vote will indicate approval of the proposal and a “no” vote will indicate rejection. The wording of the substance of the amendment or other public measure and the ballot title to appear on the ballot shall be embodied in the joint resolution, constitutional revision commission proposal, constitutional convention proposal, taxation and budget reform commission proposal, or enabling resolution or ordinance. The substance of the amendment or other public measure shall be an explanatory statement, not exceeding 75 words in length, of the chief purpose of the measure. The ballot title shall consist of a caption, not exceeding 15 words in length, by which the measure is commonly referred to or spoken of.13

The interaction of these two provisions raises the tricky question: Does the constitutional authority of the commission to file its proposals for placement on the ballot override the authority of the legislature to adopt a design for ballot initiates?

The 1968 Florida Constitution displaced portions of the 1885 Florida Constitution.14 The 1885 Florida Constitution allowed only legislature-originated methods for revision and amending the constitution.15 The 1968 Florida Constitution expressly superseded Article XVII of the 1885 Constitution.16 However, the 1968 Florida Constitution preserved laws in effect at adoption of the constitution not inconsistent with the constitution.17 Concerning constitutional revisions and amendments, the 1967 Florida Statutes provided, in pertinent part,

Whenever a constitutional amendment or other public measure is submitted to the vote of the people, the substance of such amendment, or other public measure shall be printed on the ballot one time after the list of candidates, followed by the phrase “for the amendment” and also by the phrase “against the amendment,” with a sufficient blank space thereafter for the placing of the symbol “X” to indicate the voter’s choice.18

The 1969 version of this section remained the same.19 The statute remained much the same until 1984 and later years, when substantive revisions took place.20 These revisions required further specificity in constitutional amendments.21

Of the methods to amend or revise the constitution, only Article XI, §3 (citizen initiative) is treated differently by the Supreme Court of Florida.22 Citizen initiatives are treated differently because they do not afford the same opportunity for public hearing and debate that accompanies the proposal and drafting processes of the other sections of Article XI.23 “An initiative proposal with multiple subjects, in which the public has had no representative interest in drafting, places the voters with different views on the subjects contained in the proposal in the position of having to choose which subject they feel most strongly about.”24 The court noted that the “legislative, revision commission, and constitutional convention processes of sections 1, 2 and 4 all afford an opportunity for public hearing and debate not only on the proposal itself but also in the drafting of any constitutional proposal.”25 Accordingly, to pass constitutional muster, a constitutional initiative introduced by the Constitution Revision Commission need not embrace but one subject and matters directly connected therewith.26 Thus, the dictates of F.S. §101.161 (1997) appear to address solely the Supreme Court’s safeguards directed at citizen initiatives.27 The legislative history of that statute, however, does not support that presumption.28

Analysis must begin by recognizing that legislative acts are presumed constitutional and all reasonable doubt must be granted in favor of constitutionality.29 As outlined above, F.S. §101.161 (1969) substantively mirrored F.S. §101.161 (1967). The 1885 Florida Constitution allowed only legislative processes to amend or revise the constitution.30 Yet, the law utilized to implement these processes was substantially the same as that currently on the books.31 The 1968 Florida Constitution preserved all laws then existing that were not inconsistent with that constitution.32 The 1969 Legislature cited F.S. §101.161 in its act creating the various departments of the executive branch.33 The legislature has subsequently amended F.S. §101.161, both before and after 1978.34 The 1978 Constitution Revision Commission operated, presumably acceptably, within the parameters of F.S. §101.161.35 Neither the Florida Legislature nor the 1978 Constitution Revision Commission saw the need for statutory change.36

The statutory history of F.S. §101.161 and the procedural history of the Constitution Revision Commission do not present a case substantially compelling enough to overcome the presumption that all legislation is constitutional.37 The Florida Supreme Court in Scott opined that the commission afforded sufficient safeguards to “reduce the danger of logrolling and diminish the possibility of deception.”38 The 1998 ballot evidences the error in that assessment.

The 1998 ballot does provide Florida voters the opportunity to vote on the proposals recommended by the commission. Some proposals, however, are grouped by theme or subject matter. Often, these groupings contain proposals whose public policy cut against that of others in the group. Thus, the voter is left in the unappetizing position of weighing his or her aversion for one (or more) against his or her attraction to the others in the grouping. Changing a constitution is serious business. The electors of the State of Florida deserve the opportunity to have their voice heard on each proposal. That this would mean tens more votes on each ballot is of no moment. The clarity provided by a plebescite on each proposal far outweighs any inconvenience caused by a longer ballot. After all, “we must never forget, that it is a constitution we are expounding.”39

1 Robert F. Williams, Introduction, 27 Rutgers L.J. 841, 841 (1996).
2 John Alexander Jameson, A Treatise on Constitutional Conventions: Their History, Powers, and Modes of Proceeding at 570 (4th ed. 1887, 1972 Da Capo Reprint). Interestingly, later in his book, Judge Jameson expressed his view that the use of constitutional commissions to facilitate constitutional revision as opposed to amendment was of doubtful constitutionality. Id. at 573.
3 Albert L. Sturm, The Procedure of State Constitutional Change—With Special Emphasis on the South and Florida, 5 Fla. St. U. L. Rev. 569, 585 (1977).
4 Talbot D’Alemberte, The Florida State Constitution—A Reference Guide at 15 (1991).
5 Fla. Const. art. XI, §5 (1968).
6 Fla. Const. art. XI, §1 (1968).
7 Fla. Const. art. XI, §2 (1968).
8 Fla. Const. art. XI, §3 (1968).
9 Fla. Const. art. XI, §4 (1968).
10 Fla. Const. art. XI, §6 (1968).
11 Fla. Const. art. XI, §2 (1968).
12 Fla. Const. art. XI, §(c) (1968).
13 Fla. Stat. §101.161(1) (1997) (emphasis added).
14 Fla. Const. art. XII, §1 (1968).
15 Fla. Const. art. XVII, §§1–4 (1885).
16 Fla. Const. art. XII, §1 (1968).
17 Fla. Const. art. XII, §6(a) (1968).
18 Fla. Stat. §101.161 (1967) (emphasis added).
19 Fla. Stat. §101.161(1969).
20 See, e.g., 1984 Fla. Laws ch. 302, §32, and 1990 Fla. Laws ch. 203, §11.
21 See Joseph W. Little, Does Direct Democracy Threaten Constitutional Governance in Florida?, 24 Stetson L. Rev. 393, 396 (1995).
22 Advisory Opinion to the Attorney General re: Fish and Wildlife Conservation Commission: Unifies Marine Fisheries and Game and Fresh Water Fish Commissions, No. 91,193 (Fla., Jan. 8, 1998).
23 Fine v. Firestone, 448 So. 2d 984, 987–88 (Fla. 1984).
24 Id. at 988 (emphasis added).
25 Id.
26 Id. at 995 (McDonald, J., concurring).
27 See, e.g., Op. Att’y Gen. Fla. 077-65 (1973) (“As the Supreme Court of Florida has indicated, the documents which were submitted to the public in mid-1968 as explanatory material for the proposed constitution uniformly indicate an intention to create a Constitution Revision Commission which, inter alia, would act without intervention by the Legislature.”). See also In re Advisory Opinion to the Governor, 343 So. 2d 17, 23 (Fla. 1977) (the Constitution Revision Commission was “patently designed to bypass input from the legislative branch”).
28 See Susan L. Turner, Revising the Role of the Florida Supreme Court in Constitutional Initiatives, 71 Fla. B.J. 51, 53 n.14 (Apr. 1997). But see Op. Att’y Gen. Fla. 079-20 (1979) (interpreting a previous version of Fla. Stat. §101.161).
29 Martinez v. Scanlan, 582 So. 2d 1167, 1172 (Fla. 1991).
30 Fla. Const. art. XVII, §§1–4 (1885).
31 Compare Fla. Stat. §101.161 (1967) with Fla. Stat. §101.161 (1997).
32 Fla. Const. art. XII, §6(a) (1968).
33 See 1969 Fla. Laws ch. 106.
34 See, e.g., 1979 Fla. Laws ch. 365, §16, and 1973 Fla. Laws ch. 7, §1.
35 See generally Steven J. Uhlfelder and Robert A. McNeely, The 1978 Constitution Revision Commission: Florida’s Blueprint for Change, 18 Nova L. Rev. 1489 (1994).
36 P.K. Jameson & Marsha Hosack, Citizen Initiatives in Florida: an Analysis of Florida’s Constitutional Initiative Process, Issues, and Alternatives, 23 Fla. St. U. L. Rev. 417, 424 (1995). Pundits postulate that the initiatives promoted by the 1978 Constitution Revision Commission were defeated that year because the casino gambling initiative also on the ballot poisoned the voters to all the initiatives. Robert F. Williams, Are State Constitutional Conventions Things of the Past? The Increasing Role of the Constitutional Commission in State Constitutional Change, 1 Hofstra L. & Pol’y Symp. 1, 16 (1996).
37 But see Charter Review Commission of Orange County v. Scott, 647 So. 2d 835, 837 (Fla. 1994).
38 Id.
39 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819) (Marshall, C.J.).

Kelley H. Armitageis an attorney with the South Florida Water Management District. This article has been adapted from a research memorandum presented to the Constitution Revision Commission. The opinions and analysis appearing in this article are solely those of the author. They do not necessarily reflect those of the South Florida Water Management District, its governing board, its employees, or the Constitution Revision Commission. Any errors and omissions are solely those of the author.
This column is submitted on behalf of the Government Lawyer Section, Anthony C. Musto, chair, Sheryl G. Wood, immediate past chair, and Allen Grossman, editor.

Government Lawyer