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St. Thomas Law Review

First Page

61

Document Type

Article

Abstract

In 1999 opponents of race and gender preferences in public education, public employment, and public contracting submitted to the Florida Secretary of State four petitions to end those practices in Florida. The sponsors, styling themselves as the Florida Civil Rights Initiative ("FCRI"), were led by businessman and University of California Regent Ward Connerly. The petitions were filed under the authority of Article XI, Section 3, of the Florida Constitution, which authorizes the direct proposal of constitutional amendments by the people. They were closely patterned after successful initiatives in California and Washington, where Connerly had been instrumental in securing adoption. Addressing all four petitions in a single opinion, the Supreme Court of Florida, on July 13, 2000, struck each of them from the November ballot. The Court held that each violated the requirement of the Florida Constitution that an initiative embrace but one subject. It also held that each failed to comply with a Florida statute requiring the sponsor of an initiative to provide for the ballot a clear, concise, and unambiguous explanation of the chief purpose of the measure.5 Reaction to the decision in Florida newspapers, while limited,6 was unfavorable-not because the commentators necessarily opposed preferences, but because they were distressed that the Court had taken the issue away from the voters. The excerpts betray suspicions, to say the least, that the driving force behind the Court's decision was disapproval of the substance of the measures and that the Court had sidelined its professed policy, surely required by the constitution, of refusing to consider the merits of a proposed amendment. Are the suspicions justified? Is the FCRI case a textbook example of government by judiciary, or of an activist Court undertaking to deliver society from a dangerous and misguided proposal? Postponing these questions until later, this article will show that the Court's opinion cannot stand up to "disinterested analysis." In support of this conclusion, this article examines not only the FCRI advisory opinion, but also other opinions of the Florida Supreme Court on initiatives to amend the Constitution. It asks: Are they justified by the language of the Florida Constitution and the controlling statutes? Are they supported by logic, common sense, Florida precedents, and decisions of the courts in other jurisdictions? Does the Court provide principled explanations for its decisions? Are they based on consistently applied standards? The article concludes that, for a great many of the Court's opinions, the answer to these questions has to be no. The merits of the initiatives discussed or their validity under the Constitution of the United States are not concerns of this article. Nor, with one or two exceptions, does it address the strengths and weaknesses of the initiative process in Florida. Rather, this article takes that process as it finds it and asks whether the Supreme Court has manipulated it so as to eliminate proposals seen as threats to responsible and effective government or civil liberties. The topic is usurpation.

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