FLORIDA DEPARTMENT OF STATE v. BEVERLY SLOUGH, ET AL.
CASE NO. SC08-1569

WE'LL CALL THE NEXT CASE.
FLORIDA DEPARTMENT OF STATE
v. SLOUGH.
YOU MAY PROCEED.
>> MADAM CHIEF JUSTICE, MEMBERS
OF THE FLORIDA SUPREME COURT,
GOOD MORNING.
MY NAME IS MARK HERRON.
I AM THE ATTORNEY FOR THE VOTE
YES ON 5 AMENDMENT FOR PROPERTY
TAX RELIEF INC., WHICH IS A
POLITICAL COMMITTEE.
WITH ME HERE THIS MORNING IS
ROB TELFER OF MY LAW FIRM AS
WELL AS SCOTT MAKAR, THE
SOLICITOR GENERAL AND LOU
HUBENER CHIEF DEPUTY SOLICITOR
GENERAL ON BEHALF OF THE
APPELLANTS.
APPELLANTS REQUEST THAT THIS
COURT REVISE TRIAL COURT WHICH
REMOVED AMENDMENT 5 FROM THE
2008 GENERAL ELECTION BALLOT.
THE STANDARD JUSTIFYING REMOVAL
OF A PROPOSAL CONSTITUTIONAL
AMENDMENT FROM THE, CLEAR
FROM THE CASES OF THIS COURT,
FIRST, THE COURT'S MUST ACT
WITH EXTREME CARE, CAUTION, AND
RESTRAINT IN REMOVING AN
AMENDMENT.
>> WE KNOW ALL THAT.
THE THINGS THAT WE WRITE.
WHAT I WANT TO KNOW IS WHAT IS
THE INTENT FROM, OF THIS
AMENDMENT?
WHAT DOES IT DO?
>> WELL, THE CHIEF PURPOSE --
>> AND AS THE JUDGE SAID, IT'S
LIKE A PRETTY COMPLICATED
THING.
AND TAXWATCH SAYS IT'S WHO
KNOWS, BUT I WANT TO AT LEAST
TRY TO FIGURE OUT WHAT THE
VOTERS WOULD WANT TO KNOW ABOUT
WHAT THIS AMENDMENT SAYS, AND
THEN WE CAN DECIDE WHETHER THIS
IS A MISLEADING SUMMARY OR NOT.
>> WHAT THE, WHAT THE SUMMARY
AND THE BALLOT TITLE ARE
REQUIRED TO SET FORTH IS THE
CHIEF PURPOSE OF THE AMENDMENT,
AND THE CHIEF PURPOSE OF THE
AMENDMENT IS TO ELIMINATE
SCHOOL PROPERTY TAXES AS A
FUNDING SOURCE FOR THE STATE
EDUCATION BUDGET AND TO REPLACE
THEM WITH SCHOOL REVENUES.
>> IS IT TO DO IT EVERY YEAR OR
ARE THEY REQUIRED TO COME UP
WITH AN EQUAL AMOUNT FROM WHAT
THEY WOULD'VE RAISED IN STATE
-- I MEAN LOCAL AD VALOREM
TAXES EVERY YEAR OR JUST FOR
THE ONE YEAR?
>> THE AMENDMENT ONLY REQUIRES
THAT THE EQUIVALENT AMOUNT BE
SET FORTH IN THE INITIAL YEAR,
AND THE REASON OF THAT IS
BECAUSE IT DOESN'T CHANGE ANY
EXISTING RULE IN THE STATE
CONSTITUTION.
EDUCATION FUNDING, THE AMOUNT
OF SCHOOL PROPERTY TAXES THAT
CONSIST AND COMPRISE THE STATE
EDUCATION FUNDING CHANGES FROM
YEAR TO YEAR.
>> BUT WHY ISN'T THAT THOUGH
MISLEADING AT THE OUTSET?
THAT IS, IF THE AVERAGE VOTER
IS GOING TO READ THAT AND SAY,
WELL, THIS IS LIKE A HOLD
HARMLESS SITUATION, I DON'T
HAVE TO WORRY ABOUT THE SCHOOLS
NOT CONSISTENTLY BEING FUNDED
AT THE SAME LEVEL THAT THEY
WERE FUNDED BEFORE I VOTED FOR
THIS AMENDMENT, AND DID AWAY
WITH THE PROPERTY TAX FUNDING.
I, I DON'T HAVE TO WORRY ABOUT
IT BECAUSE THE SAME AMENDMENT
SAYS THAT THE LEGISLATURE HAS
TO CONTINUE FUNDING EVEN THOUGH
THEY HAVE TO FIND ANOTHER
SOURCE.
WHY ISN'T THAT MISLEADING IF IN
FACT IT ONLY PROVIDES FOR ONE
YEAR OF THAT MANDATED FUNDING?
>> WELL, THE ONLY YEAR THAT THE
REPLACEMENT HAS TO BE MADE, I
MEAN, I SAY, THE ONLY YEAR THAT
IT HAS TO BE HELD HARMLESS IS
THE YEAR THE REPLACEMENT HAS TO
BE MADE, AND --
>> BUT THE TITLE SUGGESTS THAT
IT WILL BE HELD HARMLESS
PERIOD.
YOU KNOW, THAT THERE, THERE
WOULD NOT JUST BE A ONE-YEAR
LIMITATION SO WHY ISN'T THAT,
AS I SAY, WHY ISN'T THAT
MISLEADING AT THE OUTSET?
THAT S I AM GOING TO VOTE, AND
I, I READ THIS, AND I SAY WELL,
WHY SHOULDN'T I DO THIS?
IN ADDITION TO THE FACT THAT I
OWN PROPERTY AND I'LL GET A
LITTLE RELIEF I CAN, MY
CONSCIENCE REALLY CAN BE SALVED
BECAUSE THIS ALSO MANDATES THAT
THE LEGISLATURE TAKE CARE TO BE
SURE THAT THAT REVENUE SOURCE
IS, IS REPLACED, SO INSTEAD OF
THAT BEING THE CASE THOUGH,
THEN I FIND OUT OH, THE FINE
PRINT SAYS NOW THEY ONLY HAVE
TO DO THAT FOR ONE YEAR.
AFTER THAT, WE'VE GOT A
PROBLEM.
WHY ISN'T THAT MISLEADING?
>> RESPECTFULLY, YOUR HONOR, I
DON'T THINK THE TITLE AND THE
SUMMARY READ TOGETHER STATE OR
IMPLY THAT --
>> WELL, READ ME THE TITLE
AGAIN.
>> IT SAYS ELIMINATING
STATE-REQUIRED SCHOOL PROPERTY
TAX AND REPLACING
WITH EQUIVALENT STATE REVENUES
TO FUND EDUCATION.
THAT'S THE TITLE.
THAT'S THE CAPTION BY WHICH
THIS AMENDMENT IS KNOWN BY.
NOW WE GO DOWN AND READ THE
SPECIFICS, THE CHIEF PURPOSE OF
THE AMENDMENT, IT SAYS
REPLACING STATE-REQUIRED SCHOOL
PROPERTY TAXES WITH STATE
REVENUES, GENERATING AN
EQUIVALENT HOLD HARMLESS AMOUNT
FOR SCHOOLS THROUGH ONE OR MORE
OF THE FOLLOWING OPTIONS.
>> NOW, WHY DOESN'T THAT?
THAT HAS IT BOTH IN THE TITLE
AND THEN EVEN MORE DRAMATICALLY
IN THE SUMMARY ITSELF ACTUALLY
USING THE WORDS HOLD HARMLESS.
>> IT DOES HOLD HARMLESS IN THE
YEAR THE REPLACEMENT IS MADE.
>> BUT DOES THE SUMMARY TELL
THE PUBLIC THAT THAT'S WHAT IT
IS?
>> IT DOESN'T SAY OTHERWISE IS
MY POINT T. DOESN'T IMPLY OR
STATE THAT IT IS OTHERWISE.
>> WELL, IS IT NOT POSSIBLE TO
MISLEAD BY, BY OMISSION?
>> THAT --
>> ONE NOT NEED STATE
AFFIRMATIVELY MISLEAD SOMEONE
IF YOU LEAVE OUT PERTINENT OR
KEY, CRITICAL INFORMATION.
SOMETHING, CANNOT, END UP
BEING AS MISLEADING AS AN
AFFIRMATIVE MISLEADING
STATEMENT?
>> THAT IS THE POSITION OF THE
OPPONENTS OF THE AMENDMENT.
AND IS THE POSITION THAT THIS
COURT HAS TAKEN WHEN THEY'VE
TALKED ABOUT FLYING UNDER FALSE
COLORS.
BUT AGAIN WE RECOGNIZE THAT
WITH RESPECT TO USE OF THE
REQUIRED LOCAL EFFORT, THAT
THERE IS NO STATE
CONSTITUTIONAL REQUIREMENT,
THAT LOCAL REVENUES BE USED.
>> BUT IT --
>> AND SO WE'RE NOT HIDING THE
BALL HERE.
>> BUT ISN'T THE ESSENCE OF
THAT, THAT THIS AMENDMENT
ATTEMPTS TO CHANGE THE HOLD
FUNDING MECHANISM FOR THE STATE
IN SUPPORTING PUBLIC SCHOOLS?
I MEAN, THAT'S, THAT'S
BASICALLY --
>> THAT IS EXACTLY WHAT IT
DOES, YOUR HONOR.
>> AND WHAT THE, WHAT, THE WAY
I READ THIS IS THAT IT'S A QUID
PRO QUO TYPE OF THING THAT
WE'RE GOING TO REDUCE YOUR
PROPERTY TAXES, BUT WE'RE GOING
TO GUARANTEE THAT THERE'S GOING
TO BE A REPLACEMENT THAT THEN I
FIND UNFORTUNATELY LIKE SOME
WARRANTIES THAT THE, THAT IT'S
NOT A LIFETIME WARRANTY.
IT'S A LIMITED WARRANTY.
BECAUSE IT'S ONLY GOING TO GO
FOR ONE YEAR, AND I DON'T HAVE
ANY RECOURSE AFTER 2011 TO GO
IN AND REQUIRE THE REPLACEMENT
TO BE THERE.
I NENE MEAN, ISN'T THAT THE
ESSENCE OF THE PROBLEM WE ARE
DEALING WITH?
>> THAT'S THE ESSENCE OF THE
ARGUMENT OF THE OPPONENTS BUT
THE ESSENCE OF THE ARGUMENT IS
THAT THERE IS NO GUARANTEE
TODAY UNDER FLORIDA'S
CONSTITUTION THAT LOCAL
PROPERTY TAXES COMPOSE 1 PENNY
OF STATE EDUCATION BUDGET.
DESPITE WHAT MAYBE A GUARANTEE
TODAY, --.
>> DESPITE WHAT MAY BE A
GUARANTEE TODAY, WHEN THE
AVERAGE PERSON READS THIS
WITHOUT YOU PUTTING LANGUAGE IN
THAT SAYS THAT THIS HOLD
HARMLESS IS ONLY FOR THE YEAR
2010-2011, THE AVERAGE PERSON
IS GOING TO READ THIS AND SAY,
OKAY, THOSE PROPERTY TAXES ARE
GONE, BUT THE STATE IS GOING TO
PUT THAT SAME AMOUNT OF MONEY
INTO THE SCHOOL SYSTEM I DON'T
HAVE ANYTHING TO WORRY ABOUT.
WHAT, WHAT WOULD PUT THIS OM--
THEM ON NOTICE IN THIS TITLE OR
THE SUMMARY, WHICH IS ALL
THEY'RE GOING TO READ WHEN THEY
GO TO THE POLLS THAT THIS IS
LIMITED.
>> I THINK, YOUR HONOR, THE
ANSWER TO THAT QUESTION IS THAT
THE TITLE AND SUMMARY IS
ACCURATE AS TO WHAT THE
AMENDMENT DOES.
WHAT YOU ARE RAISING IN YOUR
QUESTIONS, I BELIEVE, ARE THE
POLITICAL REASONS THAT ANYONE
WOULD OPPOSE THIS AMENDMENT.
AND THERE ARE A NUMBER OF
POLITICAL REASONS WHY ANYBODY
WOULD OPPOSE THIS AMENDMENT.
>> BUT THE POLITICAL REASON YOU
WANT YOU WOULD WANT THIS
AMENDMENT IS I'M NO LONGER
GOING TO PAY THESE PROPERTY
TAXES BUT MY SCHOOL SYSTEM IS
STILL GOING TO BE THE SAME.
BECAUSE THERE'S MONEY REPLACING
IT.
THAT'S THE POLITICAL REASON I
WOULD VOTE FOR.
>> BUT IT DOESN'T SPECIFY IN
THE AMENDMENT, DOES IMPLY OR
INFER THAT IT IS AN ONGOING
GUARANTEE.
>> THIS IS THE PROBLEM I HAVE
ABOUT THE TITLE.
AND IT REALLY, I THOUGHT THAT
JUDGE COOPER DID A GOOD JOB
WHEN HE SAID IT.
THE TITLE CAN SOMETIMES BE
BROAD, AND IT COULD'VE SAID
SOMETHING LIKE IMPACTING THE
WAY SCHOOLS ARE FUNDED OR
SOMETHING THAT IS SOME CATCHY
TITLE LIKE THAT OR LIKE, BALLOT
7, RELIGIOUS FREEDOM, YOU KNOW,
WHICH, AND THAT'S REALLY, WE
KNOW, THE VOTERS RELY A LOT ON
THE TITLE BUT IF THE TITLE IS
VERY BROAD THEN MAYBE THEY'LL
GO BACK AND THEY'LL LOOK AT THE
SUMMARY.
WHEN YOU'VE GOT A TITLE THAT IS
VERY SPECIFIC TO THIS ONE,
WHICH IS ELIMINATING STATE
REQUIRED SCHOOL PROPERTY TAX
AND REPLACING WITH EQUIVALENT
STATE REVENUES TO FUND
EDUCATION, THAT'S WHERE I'M
CONCERNED BECAUSE YOU'RE MAKING
A VERY, IT APPEARS, AVERAGE JOE
AND AVERAGE JUSTICE THAT THAT'S
DOING WHAT JUSTICE WELLS SO
SAID SO WELL.
IT'S A LIFETIME GUARANTEE.
I DON'T HAVE TO WORRY ANYMORE.
AND THAT'S MY CONCERN AND I
THOUGHT THAT WAS JUDGE COOPER'S
CONCERN THAT AS LONG AS THE
TITLE IS BROAD, IT MAY NOT BE
MISLEADING.
BUT IF IT GETS NARROW, THEN YOU
HAVE SOMETHING THAT COULD BE
MISLEADING AND AGAIN I'D SAY
THAT EVEN IN THE SUMMARY ITSELF
BUT AREN'T CASES DIFFERENT
DEPENDING ON HOW BROAD OR
NARROW THE TITLE IS TO PUT THE
VOTER ON NOTICE AND ISN'T THIS
STATEMENT A VERY NARROW VIEW
THAT COULD BE AFFIRMATIVELY
MISLEADING TO THE VOTERS?
>> I DON'T THINK ANY OF YOUR
CASES HAVE EVER SAID THAT.
I THINK WHAT YOUR CASES HAVE
SAID CONSISTENTLY THAT THE
TITLE, THE 15 WORDS IS A
CAPTION AS WHAT THE AMENDMENT
GOES BY.
FOR EXAMPLE, CLASS-SIZE
AMENDMENT WENT BY THE NAME
CLASS-SIZE AMENDMENT BUT IT HAD
ALL SORTS OF THINGS THEREIN
THAT DEALT WITH THE FUNDING OF
CLASS SIZES UNDER THE EDUCATION
AMENDMENT.
IN ANSWER TO A QUESTION, I
THINK THIS IS THE TITLE PART,
THE 15 WORDS IS JUST THE
CAPTION BY WHICH THE
CONSTITUTIONAL REVISION
COMMISSION CALLED IT.
>> BUT DOESN'T THAT CAPTION
HAVE TO NOT GIVE THE VOTER A
FALSE IDEA OF WHAT IS CONTAINED
IN THE AMENDMENT.
BECAUSE IT SAYS ELIMINATING AND
REPLACING.
>> AND MADAM CHIEF JUSTICE, I
THINK YOU ARE BUY NOTHING TO
THE POLITICAL DEBATE THAT --
BUYING INTO THE POLITICAL
DEBATE THAT THE APPELLEES ARE
ARGUING IN THEIR OPPOSITION TO
THIS AMENDMENT.
THIS AMENDMENT DOES DO EXACTLY
THAT.
IT ELIMINATES AND REPLACES,
THAT'S WHAT IT DOES.
IT CLEARLY DOES THAT.
>> IT ELIMINATES FOR ALL
TIME -- CORRECT.
>> CORRECT.
>> AND REPLACES ONE YEAR.
>> IT REPLACES IN THE YEAR IN
WHICH THE ELIMINATION OCCURS.
>> THEN WHY WAS IT NECESSARY TO
USE WITH EQUIVALENT BECAUSE IT
SAYS NECESSARY TO REPLACE WITH
EQUIVALENT.
>> TO LET THE VOTERS KNOW THAT
THERE IS A FLOOR ESTABLISHED IN
THAT YEAR, AND THAT THAT FLOOR
IS SET FORTH IN THE AMENDMENT
IN THE TEXT OF THE AMENDMENT.
AND IT'S THE, IT'S THE FUNDING
IN THE 2008-2009 FISCAL YEAR AS
ADJUSTED BY GROWTH FACTOR.
>> SO DO YOU AGREE IT WOULD AT
LEAST BE -- WOULD YOU AT LEAST
ADMIT IT WOULD BE CLEAR AND
EQUIVALENT HOLD HARMLESS FOR
ONE YEAR?
>> JUSTICE BELL, I MEAN, I'VE
WRITTEN SOME OF THESE, AND I'VE
ATTACKED SOME OF THESE AND I'VE
DEFENDED SOME OF THESE AND IT
IS AN ART AS OPPOSED TO A
SCIENCE.
AND, AND THERE ARE HUNDREDS OF
WAYS IN WHICH THIS TITLE
COULD'VE BEEN WRITTEN IN A
DIFFERENT WAY.
>> COULD YOU GIVE US ONE, SINCE
YOU'VE GOT TO SOMETIMES ARGUE
AGAINST YOURSELF, I'M SURE YOU
DO THAT WHEN PREPARING WHAT
MIGHT HAVE BEEN A BETTER WAY TO
HAVE STATED THIS?
IN OTHER WORDS, IF YOU WERE TO
TELL THE VOTERS 15 WORDS WHAT
THIS WAS DOING, CAN YOU DO IT?
>> I THINK I COULD.
I WOULDN'T WANT TO CONCEDE THAT
IT'S A BETTER TITLE.
>> WHAT WOULD IT SAY?
>> IT MIGHT SAY ELIMINATION OF
SCHOOL PROPERTY TAXES.
>> YOU AGREE THAT IN DRAFTING A
TITLE AND SUMMARY, THE
DRAFTER IS SKIRTING A LINE
BETWEEN BEING AS ACCURATE AND
INFORMATIVE AS POSSIBLE.
ON THE ONE HAND AND ON THE
OTHER HAND GETTING THE
AMENDMENT PASSED.
AND YOU AGREE THAT INCLUDING
THE LIMITATION THAT IT'S ONLY
FOR GUARANTEED FOR ONE YEAR,
THAT DECREASES THE LIKELIHOOD
OF GETTING THE AMENDMENT
PASSED.
>> I WON'T AGREE TO THE SECOND
PART, AND IN ALL HONESTY, I
DON'T, I CAN'T MOTIVATE WHAT
THE CONSTITUTIONAL -- I MEAN
THE TAX AND BUDGET REFORM
COMMISSION DID IT WHEN THEY
DRAFTED THIS TITLE.
I THINK THEY TRIED -- THE TITLE
AND SUMMARY TOGETHER I THINK
THEY TRIED TO PUT OUT THERE
EVERYTHING THE AMENDMENT DOES
IN CLEAR AND UNAMBIGUOUS
LANGUAGE.
>> WELL, MR.^HERRON, TELL ME
ABOUT WHERE IT ADDRESSES IN THE
SUMMARY THAT ADEQUATELY
EXPLAINS WITHOUT MISLEADING
WITH REGARD TO NOT JUST THE
SCHOOL IMPACT BUT THE
LIMITATION ON OTHER TAXES AS
WELL.
>> WELL, IN TERMS OF THE
TITLING OR THE TITLE AND
SUMMARY READ TOGETHER?
>> BOTH.
THE TITLE DOESN'T --
>> THEY DIDN'T ADDRESS IT IN
THE TITLE AT ALL BECAUSE AGAIN
THE TITLE IS THE NAME BY WHICH
IT GOES BY AND IT HAD TO HAVE
BEEN --
>> BUT IT HAS NOTHING TO DO
WITH SCHOOLS.
YOU HAVE GOT A TITLE THAT
ADDRESSES ONLY THE ASPECT OF
SCHOOLS AND THEN YOU HAVE GOT A
SIGNIFICANT IMPACT WITH REGARD
TO LOCAL SERVICES AND THE CAPS
THAT ARE GOING TO BE PLACED,
CORRECT?
BUT UNDER THE STATUTORY
REQUIREMENT FOR THE TITLE IT'S
15 WORDS BY WHICH IT'S CALLED.
IT'S THE SUMMARY THAT
DESCRIBES --
>> SO THEN THE COURT SHOULD NOT
LOOK TO THE TITLE TO DETERMINE
UNDER THE \STATUTORY CHAPTER
101 TO NOT LOOK TO THAT AS TO
WHETHER IT'S MISLEADING OR THE
PUBLIC'S GOING TO, TO NOT
REALLY UNDERSTAND WHAT WE'RE
DEALING WITH?
>> AGAIN, AGAIN, IT'S THE
CAPTION BY WHICH IT GOES BY.
YOU LOOK, YOU LOOK AT THE
SUMMARY FOR --
>> SO YOU CAN PUT ANYTHING IN
THE, IN THE IN THE TITLE TO
ENTICE VOTERS? SO THIS IS WHAT
I AM TROUBLED WITH, AND LET ME
SHARE WITH YOU AS LONG AS I
HAVE BEEN ON THIS COURT AND IT
HASN'T BEEN THAT LONG, BUT IT'S
STARTING TO BECOME A GAME AND
THESE KINDS OF THINGS OUGHT TO
BE FILED ON MERIT, NOT ONLY, --
NOT ON THE CATCHY PHRASING WE
ARE TALKING ABOUT THE ORGANIC
LAW OF THE GREAT STATE OF
FLORIDA AND WE GET INTO THIS
GAME PLAYING AS IT APPEARS ARE
THE TIME AND IT'S GETTING MORE
AND MORE AND MORE.

WHY NOT REQUIRE THAT ANYONE
WANTS TO CHANGE THE CONSTITUTION
THAT OUR INTERPRETATION OF NOT
BEING MISLEADING, THAT IT NOT BE
MISLEADING, THAT IT NOT ENGAGE
IN ALL OF THESE CATCHY PHRASES
AND POLITICAL JARGON, IF YOU
WILL, SO THAT THE PEOPLE OF
FLORIDA WILL KNOW WHAT THEY'RE
VOTING ON?
WHAT'S WRONG WITH THAT CONCEPT?
>> I THINK YOU'RE ASSUMING THE
VOTERS ARE ONLY READING TITLES,
AND AGAIN, WHAT THE LAW HAS
BEEN, WHAT THE STATUTE 101--
WHATEVER THAT STATUTE NUMBER
IS -- REQUIRES IS THAT THE
MATTERS BE SET FORTH IN THE --
>> MR. HERRON, I MEAN, WE HAVE
THE -- HOW THE FLORIDA
DEPARTMENT OF STATE, HOW THESE
THINGS ARE GOING TO APPEAR ON
THE BALLOT, AND ON THE BALLOT
JUST LIKE NUMBER 7 SAYS,
"RELIGIOUS FREEDOM," AND THEY'RE
GOING TO THINK THEY'RE VOTING ON
RELIGIOUS FREEDOM, THE VOTERS
ARE GOING TO SEE WHEN THEY LOOK
AT NUMBER 5, "ELIMINATING
STATE-REQUIRED SCHOOL PROPERTY
TAXES AND REPLACING WITH
EQUIVALENT STATE REVENUES TO
FUND EDUCATION."
AND NOBODY IN THEIR RIGHT MIND
ISN'T GOING TO THINK, ISN'T THAT
A GREAT IDEA?
I GET SAVINGS ON MY PROPERTY TAX
AND THE STATE GETS TO FUND
EDUCATION.
>> I RESPECTFULLY SUBMIT THE
OTHER 75 WORDS WILL BE THERE,
AND I SEE THAT I'M IN MY
REBUTTAL TIME.
>> YEAH, BUT THE PROBLEM STILL,
MR. HERRON, IS EVEN IF THE VOTER
GOES BEYOND THAT TITLE, READS
THE REST OF THE 75 WORDS THAT'S
THE SUMMARY, WHERE IN IT DOES IT
TELL THAT VOTER THAT THIS
REPLACEMENT WITH EQUIVALENT
STATE REVENUES TO FUND EDUCATION
IS FOR THE YEAR 2010, 2011 ON?
>> I THINK IT'S THERE BECAUSE
IT'S CONNECTED TO THE REPEAL OF
THE STATE PROPERTY TAX AS A
SOURCE OF THE BUDGET --
>> AND SO EVERY CITIZEN WOULD
KNOW THAT?
>> I DON'T THINK WE CAN ASSUME
THEY DON'T.

>> THANK YOU.
MR. RICHARD?
>> MAY IT PLEASE THE COURT, MY
NAME IS BARRY RICHARD, AND I AM
COUNSEL FOR THE APPELLEES.
>> LET ME BEGIN WITH A QUESTION
ON THE TITLE.
TO BE FAIR TO MR. HERRON, THEY
ONLY GET 15 WORDS FOR THE TITLE.
SO IN ORDER TO DECIDE WHETHER IT
IS AFFIRMATIVELY MISLEADING,
DON'T WE NEED TO GO BEYOND TO
LOOK AT THE SUMMARY?
AND YOU MAY BE ABSOLUTELY
CORRECT THAT IT DOESN'T TELL THE
VOTERS THAT THIS IS ONLY FOR ONE
YEAR.
YOU MAY HAVE THAT POINT, BUT MY
QUESTION IS, DON'T WE HAVE TO GO
BEYOND JUST THE TITLE AND LOOK
AT BOTH THE TITLE AND THE
SUMMARY TOGETHER TO DECIDE
WHETHER IT'S MISLEADING OR NOT?
>> NO SIR, NOT IN THIS CASE.
THE COURT HAS SAID IN A NUMBER
OF CASES YOU MUST READ THEM
TOGETHER.
BUT AS WE NOTED IN OUR BRIEF, IN
EVERY ONE OF THOSE CASES WE
DIDN'T DEAL WITH THIS SITUATION.
WE DEALT WITH A TITLE THAT WAS
BROAD ENOUGH TO ENCOMPASS
EVERYTHING IN THE AMENDMENT.
THERE WAS NOTHING MISLEADING
ABOUT WHAT THE TITLE SAID.
IT NEEDED THE SUMMARY TO FILL IN
NECESSARY DETAILS.
THIS IS MATERIALLY AND
DRAMATICALLY DIFFERENT BECAUSE
THIS IS A TITLE THAT SAYS TO THE
VOTER, THIS ONLY DOES TWO
THINGS.
AND, IN FACT, IT DOES FIVE
THINGS, AND THE OTHER THREE
THINGS ARE MAJOR CHANGES IN THE
FLORIDA CONSTITUTION.
IF I CAN GIVE YOU AN ANALOGY,
YOUR HONOR.
IF WE SAID THAT THIS IS
PERMISSIBLE, WOULD THE COURT NOT
ALSO THEN HAVE TO SAY THAT ONE
OF THE REVISION PROVISIONS COULD
PASS AN AMENDMENT THAT BOTH
CHANGED THE BUDGETARY PROCESS,
TO BORROW A PHRASE FROM THE LAST
ARGUMENT, AND IMPOSED A STATE
INCOME TAX --
>> WELL, I GUESS THAT'S THE
SINGLE SUBJECT --
>> WHAT I'M SAYING IS WE HAVE NO
SINGLE-SUBJECT PROBLEM WITH THE
REVISION COMMISSIONS, BUT COULD
THEY PUT A TITLE ON IT THAT SAID
CHANGING THE BUDGETARY PROCESS
AND NOT MENTION ANYTHING ABOUT
OPPOSING AN INCOME TAX AND THEN
ARGUE?
BUT IF YOU READ THE SUMMARY, IT
SAYS, "IMPOSES AN INCOME TAX."
ARE WE GOING TO OPEN THE DOOR TO
THAT KIND OF
AFFIRMATIVELY-DECEPTIVE TITLES?
AND WHY WOULD WE DO THAT?
THE ARGUMENT THAT WE HAVE A
LIMITATION TO 15 WORDS DOESN'T
ANSWER THE ISSUE HERE.
I POINTED OUT IN THE BRIEF THAT
THE REVISION COMMISSION ONCE HAD
A TITLE THAT SAID, "TAXATION AND
BUDGETING."
>> SO WOULD YOU AGREE WITH
MR. HERRON THAT, OR WOULD IT
STILL BE MISLEADING IF THEY
SAID, "ELIMINATING
STATE-REQUIRED SCHOOL PROPERTY
TAX," THAT WOULD BE LESS
MISLEADING THAN PUTTING THIS AND
REPLACING IT WITH -- OR DO YOU
THINK THAT WOULD HAVE STILL
FAILED IF IT SAID, "ELIMINATING
STATE-REQUIRED SCHOOL PROPERTY
TAX"?
>> OH, OF COURSE IT WOULD HAVE
FAILED.
IT DOESN'T TELL US ABOUT THE CUT
FROM TEN MILLS TO FIVE MILLS.
>> SO THAT'S ON -- SO IN OTHER
WORDS, THIS DOES OTHER THINGS,
BUT AS TO THE MAIN PURPOSE WHICH
HAS TO DO WITH THIS SCHOOL
PROPERTY TAX AT LEAST THAT WOULD
BE LESS MISLEADING AS TO THAT,
WOULDN'T IT?
>> WELL, THAT DEPENDS, YOUR
HONOR.
I THINK IT'S ARBITRARY TO DECIDE
THE MAIN PURPOSE IS THIS SHIFT
FROM LOCAL TO STATE TAXATION.
I THINK IT WOULD BE MORE
APPROPRIATE TO SAY THAT THE MAIN
PURPOSE HERE IS A REDUCTION IN
REAL ESTATE TAXES.

>> WOULDN'T THEY BE, I MEAN, I
GUESS THEN IN TERMS OF TALKING
ABOUT MOTIVATION, CERTAINLY
EVERYONE, ALL YOU'VE GOT TO SAY
IS REDUCE TAXES, AND EVERYONE'S
GOING TO VOTE FOR THAT.
SO YOU WOULD THINK WHY DIDN'T
THEY PUT THAT ONE IN?
>> I AGREE, YOUR HONOR.
AND I THINK AS THE COURT HAS
MADE CLEAR IN MANY, MANY CASES
IS THE PURPOSE WE GO THROUGH
HERE, AND I'M SORRY I'M USING
TERMINOLOGY --
[LAUGHTER]
>> THE PURPOSE OF IT IS TO BE --
LOOK, LET ME PUT IT THIS WAY,
ALL OF THE CASES THAT THIS COURT
HAS DECIDED REALLY COME DOWN TO
A SINGLE QUESTION, DO THEY NOT?
THE QUESTION IS THIS: IN THE
TITLE OR THE SUMMARY, IS THERE
AN INACCURACY OR AN AMBIGUITY
THAT MIGHT REASONABLY CAUSE A
VOTER TO CAST A BALLOT DIFFERENT
THAN THAT VOTER WOULD CAST THE
BALLOT IF HE OR SHE HAD A BETTER
NOTICE IN THE TITLE OF SUMMARY
OF WHAT REALLY HAPPENED?
ISN'T THAT ULTIMATELY WHAT ALL
OF THESE CASES AND PRINCIPLES
LEAD TO?
I DON'T BELIEVE THAT ANYONE CAN
SERIOUSLY SUGGEST THAT IN THIS
CASE IT IS NOT BOTH A GROSSLY
MISLEADING STATEMENT IN THE
TITLE AND IN THE SUMMARY AND
AMBIGUITIES THROUGHOUT BOTH OF
THEM.
>> CAN I ASK YOU SOMETHING ABOUT
THE LIMITATIONS?
EVERYONE'S ASSUMED THE 75-WORD
AND THE 15-WORD LIMITATION
APPLIES.
I KNOW FOR LEGISLATIVE
AMENDMENTS, AND THEY'VE GONE TO
THE WHOLE AMENDMENT ON -- IS
THERE A, IS THE LIMITATION AS
WE'VE ASSUMED IT IS ON BOTH THE
TITLE AND THE SUMMARY APPLICABLE
TO AMENDMENTS FOR THE
CONSTITUTIONAL AND BUDGET REFORM
COMMISSIONS?
>> YOUR HONOR, I KNOW OF NO CASE
IN WHICH THIS COURT HAS DIRECTLY
ADDRESSED THE QUESTION.
>> WELL, IN SMITH V. AMERICAN
AIRLINES THEY REFERRED TO A
75-WORD LIMIT --
>> THE STATUTE PROVIDES.
>> [INAUDIBLE]
>> THE STATUTE ONLY ACCEPTS
JOINT --
>> WE GET INTO A DEEPER ISSUE
WHICH IS --
>> NO ONE HAS RAISED THAT ISSUE.
I RAISED IT ONE TIME IN A
DISSENT.

[LAUGHTER]

>> IN ARMSTRONG --
>> YOUR HONOR WAS
EXTRAORDINARILY WELL WRITTEN.
[LAUGHTER]

>> BUT WE DON'T HAVE TO WORRY
ABOUT THAT ACADEMIC QUESTION
HERE BECAUSE THEY SURELY COULD
HAVE GIVEN ACCURATE NOTICE BOTH
IN THE TITLE, AND IN A 75-WORDED
SUMMARY HERE.
THE PROBLEM HERE ACTUALLY IS NOT
SIMPLY WHAT IT DIDN'T SAY, BUT
THE FACT THAT IT INTENTIONALLY
AFFIRMATIVELY SAYS SOMETHING
THAT CREATES --
>> AND WHAT IS THAT?
>> IT SAYS THAT THERE IS A
HOLD-HARMLESS CLAUSE.
>> THAT'S WHAT I WENT BACK TO.
I THINK THAT, TO ME, IS THE MOST
OFFENSIVE PART OF THE TITLE.
BUT WE COULD DEBATE THAT TOO.
I MEAN, IF I SAY THAT'S GOOD
ENOUGH AS LONG AS, YOU KNOW, YOU
AGREE WITH JUDGE COOPER.
BUT, I MEAN, IT'S THAT
"REPLACING WITH EQUIVALENT STATE
REVENUES" THAT, I THINK, IS THAT
HIDE-THE-BALL,
FLY-UNDER-FALSE-COLOR --
>> YOU'RE ARGUING THAT THERE'S
MORE BECAUSE IT DOESN'T REFER TO
THE NON-HOMESTEAD PROPERTY, THE
MILLAGE RATE AS WELL.
>> NO, IT DOESN'T REFER TO THE
THREE OTHER THINGS.
IT DOES --
>> HOW DO YOU DO ALL THIS IN 15
WORDS THOUGH?
UNLESS YOU JUST SAY, "EDUCATION
FUNDING"?
>> YOU DON'T HAVE TO.
YOU COULD DO WHAT THE REVISION
COMMISSION HAS DONE TIME AND
TIME AGAIN, YOU COULD SAY,
"TAXATION."
YOU COULD SAY, "A TAXATION AND
FUNDING OF SCHOOLS," YOU COULD
SAY, "REDUCTION IN REAL ESTATE
TAXES."
YOU COULD -- THE TITLE DOESN'T
HAVE TO BE DESCRIPTIVE.
THE STATUTE SAYS, "THE TITLE
SHOULD BE A CAPTION BY WHICH THE
AMENDMENT IS KNOWN."
THE ONLY THING ABOUT THE TITLE
IS IT CANNOT BE MISLEADING, AND
HERE IT'S AFFIRMATIVELY
MISLEADING.
IT DOESN'T MATTER HOW GENERAL IT
IS.
SURELY IT CAN BE DONE IN 15
WORDS, AND SURELY WITHIN 75
WORDS THE COMMISSION COULD HAVE
TOLD THE VOTERS MORE ACCURATELY
WHAT THIS DOES.
IF I MAY DWELL FOR JUST A MOMENT
ON THIS ISSUE OF THE, OF THE
FIRST QUESTION WHICH IS THE
HOLD-HARMLESS, AND BY THE WAY
THE HOLD HARMLESS IS NOT -- AS
THE COURT KNOWS -- IS NOT A
PHRASE WE'VE MADE UP HERE.
THE COMMISSION CHOSE TO DEFINE
"HOLD-HARMLESS."
THEY'VE DEFINED IT IN THE
AMENDMENT.
IT IS A SPECIFIC AMOUNT OF
MONEY, AND WHAT WE HAVE HERE IS
THAT IN THE NINE YEARS SINCE THE
AMENDMENT WAS ADOPTED,
THERE HAS BEEN
A CONTINUING INCREASE IN THE
AMOUNT OF THE REQUIRED LOCAL
EFFORT.
IT DROPPED ONLY IN THE FIRST
YEAR AFTERWARDS, AND THEN BY
LESS THAN 10 PERCENT, AND THEN
IT INCREASED CONTINUOUSLY YEAR
OVER YEAR WITHOUT A SINGLE YEAR
IN WHICH IT DROPPED BY AN
AVERAGE OF 7 PERCENT EQUALING
$7.9 BILLION IN THE LAST FISCAL
YEAR.
NOW, A VOTER LOOKING AT THIS
TITLE AND THIS AMENDMENT, WHICH
SAYS TO HIM THAT IN RETURN FOR
THE LOSS OF THE AMENDMENT,
REQUIRED LOCAL EFFORT,
THERE WILL BE A
HOLD-HARMLESS PRODUCING AN
EQUIVALENT AMOUNT OF INCOME, CAN
REASONABLY INFER FROM THAT THAT
THIS WILL CONTINUE AND THAT, IN
FACT, THE AMENDMENT CREATES IN
THE INSTITUTION SOME FORMULA TO
INSURE THAT IT CONTINUES.
THAT'S EXACTLY WHAT IT DOES.
IT CREATES A FORMULA WHICH IT
MANDATES BY WHICH THE
LEGISLATURE IS TO APPROPRIATE
THE SAME AMOUNT OF MONEY AS THE
PREVIOUS YEAR PLUS AN INCREASE
EQUAL TO THE AVERAGE INCREASE
FROM THE TWO PREVIOUS YEARS.
>> BUT WHEN YOU READ THE WHOLE
AMENDMENT THAT IS PROPOSED HERE
AND THEY TALK ABOUT GENERAL
APPROPRIATIONS FOR THE YEARS
2010-2011, WHAT THEN IS THIS
AMENDMENT REALLY SAYING?
IS IT, IS IT REALLY SAYING THAT
FOR THE FISCAL YEAR 2011-2012
THAT YOU'RE ON YOUR OWN, AND
YOU'RE GOING TO HAVE TO GO OUT
AND FIND THIS MONEY IF YOU WANT
TO HAVE YOUR SCHOOLS FUNDED AT
THE RATE THAT THEY WERE FUNDED
PRIOR TO THIS AMENDMENT?
>> WELL, I THINK WHAT IT'S DOING
IS IT'S LEAVING IT TO THE
DISCRETION OF THE LEGISLATURE
AFTER THE 2011-2012 YEAR.
AND IT CAN DO THAT.
THE ONLY ISSUE HERE IS WHETHER
WE'RE GOING TO TELL THE PERSON
STANDING IN THE VOTING BOOTH
EXACTLY WHAT IT DOES.
AND WHAT REALLY HAPPENS HERE,
AND I GO BACK TO A COMMENT
JUSTICE WELLS MADE, IS I BELIEVE
WHAT THIS TITLE AND SUMMARY
TELLS THE VOTER IS THERE'S AN
EVEN TRADE-OFF HERE.
IN RETURN FOR THE LOSS OF THE
REQUIRED LOCAL EFFORT, YOU WILL
RECEIVE WHAT THE SPONSORS
DECIDED TO CALL A HOLD-HARMLESS,
AND THEN THEY GO FURTHER AND SAY
WHICH WILL PRODUCE AN EQUIVALENT
AMOUNT OF INCOME, OF FUNDS FOR
OUR SCHOOLS.
NOW, THAT'S WHAT IT SAYS, BUT
THAT'S NOT WHAT IT DOES.
WHAT IT DOES IS IT CREATES
CONSTITUTIONALLY A
SELF-EXECUTING, AUTOMATIC,
PERMANENT CUTOFF OF THE REQUIRED
LOCAL EFFORT, BUT IN RETURN ALL
YOU RECEIVE IS A ONE-YEAR
MANDATE WHICH IS CONTINGENT UPON
LEGISLATIVE ACTION, AND THAT'S
THE END OF IT.
SO WE GO BACK TO WHAT THIS COURT
SAID IN THE ASKEW CASE WHICH IS
AN ENTIRELY SEPARATE ISSUE, AND
THAT IS THAT YOU CANNOT IMPLY
EVEN TRADE-OFF WHEN THERE IS NO
EVEN TRADE-OFF.
THAT IN ITSELF IS DECEPTIVE AND
MISLEADING.
THE ONLY OTHER COMMENT THAT I'D
LIKE TO ADD, YOUR HONORS, IS
THAT WE'VE BEEN TALKING ABOUT
THE TITLE AND THE FACT THAT THE
TITLE ITSELF TAKEN ALONE IS
MISLEADING, AND I THINK THIS
COURT SHOULD NOT ANNOUNCE A
POLICY THAT SAYS TO THE SPONSORS
THAT SAYS YOU CAN SAY ANYTHING
YOU WANT TO IN THE TITLE, AND AS
LONG AS YOU CORRECT IT LATER IN
A SUMMARY, IT'S OKAY.
THE VOTER HAS THE RIGHT TO
ASSUME -- LET ME PAUSE FOR JUST
ONE MOMENT.
IF I'M A VOTER AND I READ A
TITLE THAT IT ASSURES ME THE
ONLY THING THIS DEALS WITH THE
SCHOOL FUNDING, I HAVE THE RIGHT
NOT TO READ FURTHER.
THAT'S THE WHOLE IDEA OF NOTICE.
I NEED TO BE GIVEN ENOUGH NOTICE
TO KNOW WHETHER OR NOT I HAVE TO
READ FURTHER.
IF ALL IT SAID IS TAXATION AND
FUNDING, I'M ON NOTICE THAT I
BETTER READ FURTHER.
SO ARE WE GOING TO OPEN THE DOOR
FOR PEOPLE TO SAY WHAT I
SUGGESTED, THAT ALL THIS HAS TO
DO WITH IS BUDGET PROCESS WHEN,
IN FACT, IT IMPOSES A STATE
INCOME TAX?
BECAUSE THAT WOULD BE THE
RESULT, AND HOW WOULD WE
DISTINGUISH THAT FROM WHAT WE'D
BE SAYING IN THIS CASE?
>> LET ME ASK YOU A QUESTION,
WHAT LIMITATION WOULD THERE BE
FROM THE LEGISLATURE NEXT YEAR
SAYING WE'RE NO LONGER GOING TO
REQUIRE ANY LOCAL SCHOOL
PROPERTY TAX BONDS?
>> THERE IS NONE, YOUR HONOR.
THE LEGISLATURE HAS THE RIGHT TO
DO THAT, THEY HAVE THE RIGHT TO
DO IT BY LEGISLATION, THEY HAVE
THE RIGHT TO DO IT
CONSTITUTIONALLY, AND I AGREE
WITH COUNSEL, BY THE WAY, THAT
THE LEGISLATURE CAN DO THAT
RIGHT NOW.
BUT THAT'S NOT WHAT WE'RE
TALKING ABOUT HERE.
WE'RE TALKING ABOUT WHAT WE'RE
TELLING THE VOTERS, AND WHAT
WE'RE TELLING THE VOTERS HERE IS
THAT THERE'S SOME KIND OF A
CONSTITUTIONAL GUARANTEE, A
HOLD-HARMLESS.
SO YOU DON'T HAVE TO WORRY ABOUT
THAT.
THAT'S THE PROBLEM.
THE PROBLEM HERE IS A NOTICE
PROBLEM.
>> SO THIS COMMISSION COULD
PROPOSE THIS KIND OF AMENDMENT,
BUT WHAT YOU'RE REALLY SAYING IS
THAT YOU'VE GOT TO TELL THE
VOTER THAT THIS AMENDMENT IS
ELIMINATING YOUR PROPERTY TAXES
AND FOR ONLY ONE YEAR ARE YOU
GETTING AN EQUIVALENT AMOUNT.
AFTER THAT, NOTHING.
>> I ABSOLUTELY AGREE WITH THAT,
YOUR HONOR.
>> THAT'S WHAT THE SUMMARY
SHOULD SAY.
>> YES, YOUR HONOR --
>> AT LEAST ON THAT POINT.
THERE'S SOME OTHER POINTS.
>> THERE'S NO QUESTION THAT THE
COMMISSION, THAT THIS COULD BE
DONE BY THE VOTERS OF FLORIDA,
BUT WE GO BACK TO THE ESSENTIAL
QUESTION WHICH REALLY IS AT THE
ROOT OF BASIC PRINCIPLES
REGARDING A FREE SOCIETY.
THE VOTER NEEDS TO KNOW WHAT HE
OR SHE IS VOTING ON AND CAN'T BE
MISLED, AND THERE'S NOTHING MORE
CRITICAL.
AND, YOU KNOW, COUNSEL TALKED
BELOW AND IN MORE ARCANE TERMS
ABOUT DEFERENCE TO THE
COMMISSION.
NO COURT HAS EVER SAID THAT ANY
COMMISSION GETS DEFERENCE WHEN
IT COMES TO THE ISSUE OF BEING
TRUTHFUL AND CLEAR AND
UNAMBIGUOUS WITH THE VOTERS.
THEY DON'T GET A FREE KICK WHEN
IT COMES TO THAT.
>> IN OTHER WORDS, WE DON'T HOLD
EITHER THE LEGISLATURE OR THE
COMMISSION TO A LESSER STANDARD
OF BEING FORTHRIGHT ABOUT THE
CHIEF PURPOSE THAN WE DO FOR
CITIZENS' INITIATIVES IN THAT
REGARD.
AND NOT THAT YOU WERE ARGUING,
BUT YOU REFERRED A COUPLE OF
TIMES TO THE LAST CASE.
I WANT TO ASK YOU TWO QUESTIONS.
YOU HAVEN'T ARGUED THIS IS
BEYOND THE JURISDICTION.
THIS IS A TAXATION ISSUE FOR
THIS?
IS THAT WHAT THIS IS, NOT
BUDGETARY PROCESS?
>> NO, I'M NOT ARGUING THAT,
YOUR HONOR --
>> BUT IT'S WITHIN TAXATION?
>> NO QUESTION THE COMMISSION
CAN DO THIS.
>> BECAUSE IT'S TAXATION.
>> THAT'S CORRECT.
>> OKAY.
THE OTHER THING IS WHICH WE
NEVER GOT TO IN THE LAST CASE ON
THE BALLOT FOR NUMBER 9 IS
REQUIRING 65 PERCENT OF SCHOOL
FUNDING FOR CLASSROOM
INSTRUCTION AND SAYS NOTHING
ABOUT THE SCHOOL VOUCHER THING.
THEY MADE THAT ARGUMENT.
IS THAT, HAVE YOU LOOKED AT
THAT, THESE OTHER -- HAVE YOU
LOOKED AT ALL THE AMENDMENTS
THAT ARE BEING PROPOSED?
>> I HAVE, YOUR HONOR, AND WITH
YOUR PERMISSION, I DON'T WANT TO
GET INTO THAT DOG PILE.
[LAUGHTER]

>> OKAY.
YOU'RE THE ONE THAT KEPT ON --
>> I DON'T HAVE A DOG IN THAT
FIGHT.
>> WELL, YES, BUT I KNOW --
>> THAT WAS BEFORE THAT BECAME
POLITICALLY INCORRECT.
>> BUT WHAT I WOULD ALSO SAY IS
I KNOW YOU AS, YOU KNOW, A
FREQUENT ADVOCATE IN FRONT OF
THIS COURT THAT'S ALWAYS BEEN
HONEST ABOUT THINGS, AND I JUST
WANTED TO MAKE SURE THAT WE WERE
JUST BEING EVEN-HANDED IN HOW WE
LOOKED AT ALL OF THESE TITLES.
AND WHEN I WAS LOOKING AT IT, A
COUPLE OF THEM ALSO POPPED UP AS
BEING -- THAT COULD SUFFER FROM
THE SAME PROBLEM WHAT YOU WOULD
SAY, AGAIN, NO MATTER WHAT
AMENDMENT THAT WE'RE LOOKING AT
THAT THE TITLE CAN BE GENERAL
AND NOT BE AFFIRMATIVELY
MISLEADING, AND IT CANNOT OMIT A
CRITICAL ASPECT.
>> THAT'S CORRECT, YOUR HONOR,
AND I THINK IT'S TIME THAT THIS
COURT CLARIFIED THAT BECAUSE
WHAT HAPPENS TIME AND TIME
AGAIN, AS YOU KNOW, IS PEOPLE
REFER BACK TO THE SAVE OUR
EVERGLADES CASE, AND THAT WAS A
CASE IN WHICH THE COURT FOUND
THAT THE TITLE WAS NOT ACCURATE,
BUT THEY ALSO FOUND THERE WERE
OTHER REASONS TO STRIKE IT, AND
THE COURT HAS NEVER MADE CLEAR
TO SPONSORS THAT YOU ARE HELD TO
THE SAME LEVEL OF HONESTY IN THE
TITLE AS YOU ARE IN THE SUMMARY.
OBVIOUSLY, THE TITLE DOESN'T
HAVE TO BE COMPLETELY
EXPLANATORY, BUT IT CAN'T BE
AFFIRMATIVELY MISLEADING.
THE ONE OTHER THING I WANTED TO
COMMENT ON IS THAT JUDGE COOPER
FOUND THAT IT WASN'T JUST THE
TITLE ALONE WITH RESPECT TO THE
FACT THAT IT DIDN'T MENTION THAT
THERE WERE OTHER THINGS.
HE FOUND THAT WHEN YOU READ THE
TITLE AND THE SUMMARY TOGETHER,
THERE WAS AT VERY LEAST AN
AMBIGUITY AS TO WHETHER THE
REDUCTION IN THE ANNUAL INCREASE
IN NONSCHOOL REAL ESTATE TAXES
REFERRED TO JUST SCHOOL FUNDING
BECAUSE THE CONSTITUTION TREATS
THEM SEPARATELY.
AND IT BECOMES AN AMBIGUITY.
AND AS THIS COURT SAID IN A
PREVIOUS CASE, A TITLE ITSELF
WHICH IS POORLY WORDED CAN
CREATE AN AMBIGUITY IN THE
SUMMARY THAT MIGHT NOT OTHERWISE
EXIST, AND AT VERY LEAST THAT
HAPPENED HERE.
YOUR HONOR, THE INSTRUCTIONS
THAT WE ALWAYS RECEIVE SAY THAT
YOU'RE NOT REQUIRED TO USE ALL
YOUR TIME, AND I REALLY READ
THEM.
AND UNLESS THERE ARE MORE
QUESTIONS, I'M NOT GOING TO USE
ANYMORE OF MY TIME.
THANK YOU.
>> WE THANK YOU.
MR. HERRON?

>> MADAM CHIEF JUSTICE, MEMBERS
OF THE COURT, WITH RESPECT TO
MR. RICHARD'S LAST POINT, WHICH
WAS THE SECOND GROUND UNDER
WHICH JUDGE COOPER STRUCK THE
AMENDMENT FROM THE BALLOT, A
CLOSE READING OF HIS ANALYSIS,
AT LEAST IN OUR VIEW, IS THAT
HIS DETERMINATION THAT THERE'S
AN AMBIGUITY IS REALLY A
SECOND-SUBJECT OBJECTION THAT'S
FLYING UNDER FALSE COLORS.
I MEAN, IF YOU LOOK CLEARLY AT
THE WORDS OF THE AMENDMENT, THE
SUMMARY AS WELL AS THE
AMENDMENT, BUT IN TERMS OF THE
SUMMARY IT SAYS, "LIMITING
ANNUAL INCREASES IN ASSESSMENTS
OF NON-HOMESTEAD REAL PROPERTY."
THERE IS NO AMBIGUITY THERE AT
ALL.
IT DOESN'T TIE IT TO ANY OTHER
PARTICULAR TYPE OF TAXATIONS, IT
DOESN'T TIE IT TO ANY OTHER TYPE
OF REVENUE INCREASES.

>> WELL, READ WHAT HE WRITES.
HE SAYS, "WHEN READ WITHIN THE
CONTEXT OF THE TITLE AND
SURROUNDING TEXT OF THE SUMMARY
ALL OF WHICH REFER TO LIMITS ON
TAXES AND ON FUNDING ONLY WITH
RESPECT TO SCHOOLS, A VOTER
COULD WELL CONCLUDE THAT THE
SENTENCE ALSO REFERS TO A CHANGE
IN THE SECTION DEALING WITH
SCHOOL TAX LEVIES."
>> AND WITH RESPECT TO THAT
STATEMENT, READ THE STATEMENT
RIGHT ABOVE IT THAT'S IN THE
TITLE.
THE SENTENCE RIGHT ABOVE IT
THAT'S IN THE SUMMARY, THE
BALLOT SUMMARY SAYS, "LIMITING
SUBJECT MATTERS OF LAWS GRANTING
FUTURE EXEMPTIONS."
THAT IN NO WAY IMPLIES OR INFERS
THAT IT'S TIED TO SCHOOLS OR
SCHOOL FUNDING OR THE TAX, THE
TAX SUBSTITUTION.
>> CAN YOU ADDRESS MR. RICHARD'S
POINT AS TO WHAT THE TITLE CAN
AND CAN'T DO?
BECAUSE I THINK THAT'S IMPORTANT
FOR OUR JURISPRUDENCE, AND THAT
IS UNDER YOUR POSITION CAN A
TITLE, DOES A TITLE AND SUMMARY
HAVE TO BE CONSIDERED TOGETHER
TO DETERMINE WHETHER BOTH ARE
MISLEADING AND, THEREFORE,
PERHAPS THE TITLE CAN BE A
LITTLE MISLEADING AS LONG AS THE
SUMMARY CLARIFIES IT, OR CAN THE
TITLE JUST NOT BE MISLEADING AT
ALL, WHICH IS MR. RICHARD'S
POSITION?
>> THE CASES CONSISTENTLY SAY
THAT YOU READ THE TITLE AND
SUMMARY TOGETHER TO DETERMINE
WHETHER IT'S MISLEADING.
I --
>> YOU DON'T AGREE THAT IF WE
LOOKED AT EVERY SINGLE CASE, THE
ONES THAT SAY IT HAVE A BROAD
TITLE?
>> I HAVEN'T LOOKED AT EVERY
SINGLE CASE, SO I CAN'T TELL YOU
THAT.
>> BUT WE DON'T HAVE A CASE THAT
SAYS THE TITLE CAN BE MISLEADING
AS LONG AS BOTH TAKEN TOGETHER
ARE NOT MISLEADING?
>> I DON'T THINK WE HAVE THAT
EITHER.
THE TITLE IS THE NAME BY WHICH
IT GOES BY.
THAT'S WHAT THE STATUTE SAYS.
AND, YOU KNOW, UNLESS IT'S
SAYING IT DOES X AND IT DOES Y,
THEN KIND OF LIKE IN, YOU KNOW,
THE TITLE SAYS THIS DOES X AND
THE AMENDMENT DOES Y, THAT WOULD
BE AFFIRMATIVELY MISLEADING.
IN THIS CASE --
>> AND SO DOESN'T THIS ONE SAY X
WHEN IT REALLY DOES Y?
>> NO.
THE TITLE SAYS IT DOES X, THE
AMENDMENT DOES A, B, C, D, E.
OKAY?
BUT THE CHIEF PURPOSE OF THE
AMENDMENT IS --
>> WELL, WAIT A MINUTE --
>> WHAT A AND B DO.
>> IF THE TITLE SAYS X AND THE
AMENDMENT SAYS A, B, C, AND D,
ISN'T THAT MISLEADING?
IF THE TITLE SAYS X, SHOULDN'T
THE AMENDMENT BE X ALSO?
>> I DON'T BELIEVE SO BECAUSE
YOU GO BACK TO THE STATUTE, THE
STATUTE SAYS IT'S A NAME BY
WHICH THE AMENDMENT IS KNOWN.
>> YEAH, BUT YOU SEE, THE
PROBLEM IS -- WE'LL USE THE
LETTERS -- THE TITLE SAYS X AND
Y, AND WHAT MR. RICHARD IS
SAYING Y AIN'T HAPPENING IN THIS
AMENDMENT.
>> THAT'S A DIFFERENT ISSUE.
THAT'S A POLITICAL ISSUE AS TO
WHY IT ISN'T HAPPENING BECAUSE
FROM OUR POINT OF VIEW --
>> THAT'S WHAT'S MISLEADING
BECAUSE IT'S PROMISING Y IN THE
TITLE, AND IT'S NOT, IT'S NOT A
PROMISE THAT IS FULFILLED IN THE
AMENDMENT OR EVEN -- ISN'T THAT
THE ARGUMENT?
>> THEIR ARGUMENT IS NOT
PERPETUAL.
OUR ARGUMENT IS IT HAPPENS IN
THE YEAR IN WHICH THE SWAP IS
MANDATED BY THE AMENDMENT.
THERE IS A HOLD-HARMLESS, IT'S
SPECIFICALLY DEFINED IN THE
AMENDMENT.
THANK YOU.
>> THANK YOU, MR. HERRON.
THANK YOU BOTH FOR YOUR
ARGUMENTS, AND AGAIN, A VERY
IMPORTANT ISSUE FOR THE PEOPLE
OF THE STATE OF FLORIDA.
WITH THAT, COURT IS NOW
ADJOURNED.

>> PLEASE RISE.