Florida Supreme Court Dismisses Attorney General's Challenge To Financial Impact Statement Concerning Electric Choice Ballot Initiative

December 24, 2019

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Copyright 2010-19 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com

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The Florida Supreme Court has dismissed a petition from the state's Attorney General, which had sought a direct review by the Court of a financial impact statement corresponding to an initiative petition which is proposing an amendment to the Florida Constitution to require the introduction of electric choice (SC19-479)

The Florida Supreme Court dismissed the AG's petition for lack of jurisdiction, after recently concluding in a separate case (addressing a similar petition by the AG concerning an unrelated ballot initiative), that the Court lacks jurisdiction to review a financial impact statement associated with a ballot initiative

As previously reported, on March 15, 2019, Florida's Financial Impact Estimating Conference, in accordance with the provisions of section 100.371(5)(a), Florida Statutes, forwarded to the AG's office a financial impact statement on the electric choice initiative petition. As previously reported, the financial impact statement (which is presented to voters) concluded that the fiscal impacts from electric choice are, "unknowable", at this time. Opponents of electric choice had been seeking a financial impact statement that would have listed specific amounts in lost tax revenues and other alleged costs from electric choice

The AG, which is opposed to the electric choice amendment, requested the Court's opinion as to whether the financial impact statement prepared by the Financial Impact Estimating Conference, concerning the electric choice constitutional amendment ballot initiative, is in accordance with section 100.371, Florida Statutes.

In a similar manner, the Court was asked to review the financial impact statement regarding a minimum wage ballot petition.

In the minimum wage proceeding (SC19-736), the Court last week held that, "We previously concluded, in Advisory Opinion to the Attorney General re Referenda Required for Adoption, 963 So. 2d 210, 210 (Fla. 2007), that we have jurisdiction to review financial impact statements. We now conclude that this determination was clearly erroneous and, because we cannot exercise jurisdiction that the constitution does not provide, recede from it."

The Court held that its jurisdiction is limited to the validity of an initiative petition. "And, if the validity of the petition is not dependent upon the validity of the financial impact statement, this Court does not have jurisdiction to render an opinion on the validity of the financial impact statement," the court said

"Not only does the constitution not make a financial impact statement a part of an initiative petition, neither does current statutory law," the Court said

"Because a financial impact statement is not an initiative petition and does not constitute any part of an initiative petition under the Florida Constitution or under the system the Legislature has created for the preparation and publication of these separate documents, any issues pertaining to the financial impact statement fall outside the scope of direct review authorized by article V, section 3(b)(10)," the Court said

As such, the Court dismissed the AG's request for a review of the electric choice initiative's financial impact statement, for lack of jurisdiction

The Court's action was limited to a narrow petition from the AG for a review of the financial impact statement

The Court did not yet rule on whether the electric choice initiative petition, its language, and the proposed ballot title and summary for the proposed amendment, meet the legal requirements of article XI, section 3 of the Florida Constitution and section 101.161(1), such as the "single subject" requirement. A required review of the electric choice initiative for compliance with such provisions remains pending before the Court as a separate matter (see story here for more details)

The Court also noted that, "Our decision today does not preclude a challenge to a financial impact statement in circuit or county court, by declaratory judgment action under current law. However ... we note that that issue is not before us and express no definite opinion on the validity of such an action."

According to the Florida Division of Elections website, the electric choice initiative has accumulated 611,000 currently valid signatures. A total of 766,200 is needed to qualify for the ballot

The deadline for signatures to be certified by the Florida secretary of state is February 1, 2020

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