Florida Supreme Court Gives Green Light to Greyhound Ballot Initiative

by John M. Simpson.

On September 7, 2018, the Supreme Court of Florida reversed a lower court decision that had enjoined, from inclusion on the November 2018 Florida ballot, a proposed amendment to the Florida Constitution on the ground that the ballot language was clearly and conclusively defective.  Department of State v. Florida Greyhound Ass’n, Inc., No. SC18-1287 (Fla. Sept. 7, 2018).  The measure — Amendment 13 — would, if adopted, prohibit commercial dog racing in Florida by gaming or pari-mutuel operations in Florida and would prohibit wagering on dog races within Florida.   The Supreme Court ordered “that Amendment 13 appear on the ballot for the November 2018 general election” and ordered that “[n]o motion for rehearing will be allowed.”  Slip op. at 21.

From an animal law perspective, the significance of the case arises chiefly from the Court’s discussion of the second sentence of the proposed new section to Article X of the Florida Constitution:  “The humane treatment of animals is a fundamental value of the people of the State of Florida.”   The ballot language itself does not inform voters of this provision, which had led the circuit court to conclude that the ballot language was clearly and conclusively defective.  Id. at 10.   The Supreme Court disagreed because the “fundamental value” language was merely prefatory, had no legal effect and was therefore not required to be disclosed.

As the Supreme Court explained:

“Amendment 13’s fundamental value provision is devoid of any legislative or judicial mandate:  it bestows no rights, imposes no duties, and does not empower the Legislature to take any action.  … Irrespective of whether the [Constitution Revision Commission] intended Amendment 13’s fundamental value provision to have independent legal effect, it manifestly does not.”

Id. at 11 (emphasis added; citations omitted).  The Court also rejected the argument based upon other existing provisions of the Florida Constitution — stating that children’s education is a “fundamental value of the people of the State of Florida” and inhumane treatment of animals is “a concern of Florida citizens” — that apparently had been disclosed in their respective ballot texts.   While these provisions had been disclosed “we have never held that they were required to do so.”  Id. at 12.  As the Court observed,

“Appellees cite no case actually interpreting the substance of either provision or applying them to adjudicate a party’s rights or duties.”

Id.  In particular, the Court’s own advisory opinion on the “inhumane treatment of animals” provision (which had addressed other issues) “did not discuss whether disclosure of the provision in question was necessary.”  IdSee In re Advisory Op. to Atty. Gen. re Limiting Cruel and Inhumane Confinement of Pigs During Pregnancy, 815 So.2d 597 (Fla. 2002).  Furthermore, regardless of the actual effect of the other two provisions and whether they contributed to the creation of a private cause of action, “it is evident that the fundamental value provision of Amendment 13 does not.”  Slip op. at 13.   In summary,

“Because the fundamental value provision does not have any independent legal significance, we conclude it is prefatory and that its omission from the ballot summary does not render the ballot language clearly and conclusively defective.”

Id.

In a case like this, the only issue for the Court essentially is whether the ballot language gives the voters fair notice of the decision they must make.  In a ballot language case, the wisdom of the measure itself is not a matter for the court’s review.   It is clear from this opinion, however, that even if Amendment 13 is approved by Florida voters, it will not have the effect of creating, as a matter of state constitutional law, some kind of right to humane animal treatment that would impact other businesses in the state whose livelihoods depend upon animals or animal products in ways that may have nothing to do with greyhounds or greyhound racing.  The Supreme Court has ruled that the measure does not create any rights or impose any duties or create a cause of action.  As the Court stressed, the “fundamental value” provision in Amendment 13  “does not have any independent legal significance.”  Id. at 13.