By Ralph A. DeMeo
Florida Bar Journal, July/August 2019
The year 2018 was a watershed year for animal welfare in Florida. Among several notable achievements was the phase out and permanent ban of commercial greyhound racing associated with gaming in Florida. The following examines the history of this significant achievement through the legislative, executive, and judicial branches of Florida government, culminating in a historic vote of the people in the 2018 general election.
The 2018 Florida Constitution Revision Commission
For 10 legislative sessions starting in 2008, animal welfare advocates tried unsuccessfully to phase out and ultimately ban commercial greyhound racing associated with gaming in Florida. Although the initiative had widespread bipartisan support, the commercial greyhound breeders and gaming interests successfully defeated every effort of animal welfare interests. This led to the decision by animal welfare advocates to seek instead the support of the 2018 Constitution Revision Commission (CRC), which pursuant to Fla. Const. art. XI, §2, meets every 20 years to make a “proposal, if any, of a revision of this constitution or any part of it.” On April 16, 2018, the CRC approved proposed constitutional Amendment 13, which was intended to appear on the November 2018 statewide ballot.
Leon County Circuit Court
On May 17, 2018, the Florida Greyhound Association, Inc., and an owner of greyhound racing dogs in Collier County, filed a complaint in the Second Judicial Circuit, Leon County, against the Florida Department of State and the Secretary of State, asking for the proposed Amendment 13 to be declared invalid on grounds that the ballot title and summary required under Florida law were misleading. The proceedings were closely watched. The Florida Bar Animal Law Section (ALS), the Animal Legal Defense Fund (ALDF), and the Committee to Protect Dogs, a Florida political committee created by GREY2K USA Worldwide and the Humane Society of the United States, filed amicus curiae briefs in support of keeping the amendment on the ballot.
Following oral argument, the circuit court, on August 1, 2018, held that “Amendment 13 is clearly and conclusively defective.” The court decided the case “on the cross motions for summary judgment, the parties [sic] and amici’s memoranda, arguments, and on the controlling case law” since “the parties stipulated there were no genuine disputes of material fact, and the court did not identify any issues of material fact in dispute.”
The court stated that “the burden for removal of a proposed constitutional amendment is a high one under Florida precedent.” Further, the standard of review “requires the uncontested facts to clearly and convincingly establish that the proposed ballot title and summary are misleading and defective, not providing the voters with the ‘truth in packaging’ to which they are entitled.” The court explained that “[i]n this analysis, we consider two questions: (1) whether the ballot title and summary, in clear and unambiguous language, fairly inform the voter of the chief purpose of the amendment; and (2) whether the language of the title and summary, as written, misleads the public.” The court went on to say that “this evaluation also includes consideration of the amendment’s true meaning and ramifications.” It emphasized that the court’s “role in this process is as a reviewer of constitutional validity, not as an editor or author” and that it would strike the amendment if found to be defective as opposed to fix any problems found with it.
On August 2, 2018, the defendants/appellants, Department of State and Secretary of State, filed a notice of appeal with the First District Court of Appeal for the order rendered on August 1, 2018. Additionally, on August 2, 2018, the circuit court ordered a supplement to final judgment, which indicated that “[y]esterday’s final judgment inadvertently did not reference the parties’ joint notice of priority status or Rule 2.215(g), recognizing the duty of every judge to expedite priority cases, including those ‘involving challenges to elections and proposed constitutional amendments.’” The circuit court ordered the supplement “be considered part of the final judgment entered August 1, 2018.” On August 3, 2018, plaintiffs filed a notice of filing of transcript and the parties, together, filed a joint suggestion for pass-through certification and joint request for expedited treatment.
On August 6, 2018, the First District Court of Appeal granted the parties’ request and certified the appeal as requiring immediate resolution by the Florida Supreme Court under Fla. Const. art. V, §3(b)(5), which provides that the Florida Supreme Court:
[m]ay review any order or judgment of a trial court certified by the district court of appeal in which an appeal is pending to be of great public importance, or to have great effect on the proper administration of justice throughout the state, and certified to require immediate resolution by the supreme court.
The First DCA concluded that:
Certification is proper because (a) a final, appealable order was entered in this case; (b) the issues presented are of great public importance, arising from a proposal of the Florida Constitution Revision Commission to amend the state constitution; and (c) a need for immediate resolution exists due to time constraints related to the pending election and ballot preparation timelines.
The Florida Supreme Court’s Decision
On August 7, 2018, the Florida Supreme Court accepted jurisdiction and set the case for oral argument on August 29, 2018. Recognizing the expedited timeframe needed given the November election, the court rendered its decision shortly after oral arguments on September 7, 2018. The court reversed the circuit court’s decision and upheld the validity of Amendment 13, thus, the court concluded that the amendment would appear on the ballot.
• Standard of Review — Initially, the Supreme Court recognized that determining whether the language of a proposed constitutional amendment is deficient is a pure question of law and, therefore, the standard of review is de novo. If the ballot’s language is declared deficient, the court is unable to rewrite the language and must strike down the proposed amendment; therefore, the court is hesitant to find ballots to be deficient. The court then articulated:
Florida law requires the ballot language to give the voters “fair notice” of the decision they must make. In terms of a ballot title and summary, fair notice “must be actual notice consisting of a clear and unambiguous explanation of a measure’s chief purpose.” To evaluate whether a proposed amendment’s ballot language is clearly and conclusively defective, the [c]ourt considers two questions: first, “whether the ballot title and summary fairly inform the voter of the chief purpose of the amendment,” and second, “whether the language of the ballot title and summary misleads the public.” Ballot language may be clearly and conclusively defective either in an affirmative sense, because it misleads the voters as to the material effects of the amendment, or in a negative sense by failing to inform the voters of those material effects.
. ..When evaluating whether a proposed amendment’s ballot language is clearly and conclusively defective, “a court must look not to subjective criteria espoused by the amendment’s sponsor but to objective criteria inherent in the amendment itself, such as the amendment’s main effect….” We read the ballot title and summary as a single text to determine what a reasonable voter would understand it to say. Although the polestar of our analysis is the candor and accuracy with which the ballot language informs the voters of a proposed amendment’s effects, we have also recognized “that voters may be presumed to have the ability to reason and draw logical conclusions” from the information they are given.. . . Because of this, ballot language “is not required to explain every detail or ramification of the proposed amendment.” However, the notoriety of a proposed amendment and the media attention given to it do not excuse a proposed amendment’s ballot language from compliance with the law.
• Overview of the Issues — The court identified the following three issues: 1) whether the amendment’s language is “clearly and conclusively defective because it fails to inform the voters that adoption of Amendment 13 would recognize the humane treatment of animals as a fundamental value;” 2) whether the amendment’s language does not adequately detail the effect it has on gaming in Florida; and 3) whether the amendment’s language misleads the voter as it does not end all dog racing because Floridians are still able to place wagers on out-of-state races.
• Issue #1: The Humane Treatment of Animals Is a Fundamental Value — In addressing the first issue, the court noted that “[w]hen considering whether ballot language is clearly and conclusively defective, a reviewing court analyzes the text of a proposed amendment to determine its legal significance, and identifies the proposed amendment’s chief purpose based on the results of that analysis.” When a provision of a ballot lacks independent legal significance, it is deemed prefatory. “Although prefatory language may aid a court to determine legislative intent when the operative terms of a provision of law are ambiguous, such language does not control interpretation of the operative terms of that provision.”
The court ultimately concluded that the fundamental value provision lacks any independent legal significance; and, as a result, the court concluded that the alleged fundamental value is prefatory. Because the fundamental value provision was deemed prefatory, the lack of mentioning it in the ballot’s language did not render Amendment 13 defective.
• Issue #2: Other Forms of Gaming — Next, the court addressed the lower court’s conclusion that Amendment 13’s language misleads the voters as to its effect on other forms of gaming. “A ballot summary may be defective if it omits material facts necessary to make the summary not misleading.” While a ballot summary need not advise the voters that the proposed amendment would not change any current constitutional provision, the proposed amendment must not conflict with an existing constitutional provision. “A ballot summary also is not per se defective because it fails to advise voters of exceptions to the mandate of the proposed amendment, provided the ballot language is not otherwise misleading.”
The court concluded that Amendment 13 would not affect any existing provision of the Florida Constitution. The court pointed to pre-existing constitutional provisions that relate to slot machines and card room operations. Those provisions also had some relation to dog racing; however, as the court noted, those provisions related to past dog racing. Amendment 13 relates to future dog racing; and, therefore, there was no conflict between Amendment 13 and preexisting constitutional provisions. Additionally, “[w]ith regard to Amendment 13’s effect on other forms of gaming, we conclude the ballot language’s statement that ‘[o]ther gaming activities are not affected’ by Amendment 13 is accurate.”
• Issue #3: Ends Dog Racing — The court last addressed the circuit court’s conclusion that Amendment 13’s language misleads voters in thinking that it would completely end dog racing. The court disagreed. It reasoned that “a reasonable voter would not interpret the ballot language as a whole to state that Amendment 13 would prohibit races of dogs in other contexts than in connection with wagering.” Thus, the court concluded that reading the ballot would not lead a reasonable voter to conclude that Amendment 13 affects other forms of racing. “Furthermore, a reasonable voter would not interpret the ballot language to mean that Amendment 13 will prohibit persons in Florida from wagering on out-of-state dog races. Such an interpretation misreads the ballot language.” “We therefore conclude the circuit court erred when it determined Amendment 13’s ballot language misled voters with regard to Amendment 13’s scope.” In sum, the Florida Supreme Court reversed the lower court’s decision on all points and held that Amendment 13 would appear on the ballot.
The 2018 Election
On November 6, 2018, history was made when 69.06 percent of Florida voters voted “yes” on Amendment 13 to ban commercial greyhound racing in the state that is wagered on. Voter turn-out was large, with 5,407,543 of the 7,830,669 voters voting “yes” to phase out all commercial greyhound racing by the year 2020. This represented the culmination of more than 10 years of efforts to ban the practice of greyhound racing in Florida.
 Circuit Court for the Second Judicial Circuit, Leon County Final Order at 3, available at http://media.graytvinc.com/documents/NOTICE+OF+APPEAL1.pdf.
 Id. at 2.
 Id. at 10.
 Id. at 11.
 Id. at 12.
 Supplement to Final Judgement, Case No. 2018-CA-1114 Leon County Circuit Court filed Aug. 2, 2018.
 First DCA Order, citing Fla. Const. art. V, §3(b)(5), from Aug. 6, 2018, Case No: 1D-18-3260 at 1. The author represented The Florida Bar Animal Law Section in appeals.
 State v. Fla. Greyhound Ass’n, 253 So. 3d 513 (Fla. 2018).
 Id. at 519-520 (citations omitted).
 Id. at 521.
 Id. at 522 (“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. (quoting Advisory Op. to the Att’y Gen.— Ltd. Political Terms in Certain Elective Offices, 592 So. 2d 225, 228 (Fla. 1991)).
 Id. at 523.
 Id. at 524.
 Id. at 524-525
 Id. at 525.
Ralph A. DeMeo is a shareholder with the Tallahassee office of national law firm Baker Donelson, practicing environmental, land use, administrative, real property, health and safety, and animal law, with emphasis in civil and administrative litigation. He received his B.A. and M.A. with honors from Stetson University and his J.D. with honors from Florida State University College of Law. A frequent author and lecturer, he is past chair of The Florida Bar Animal Law Section, past chair of The Florida Bar Environmental and Land Use Law Section, past chair of The Florida Bar Journal and News Editorial Board, and past Executive Council member of The Florida Bar Administrative Law Section.
This column is submitted on behalf of the Animal Law Section, Matthew Dietz, chair, and Ralph A. DeMeo, editor.