THE REV. DR. JAMES ARMSTRONG,

THE REV. DR. DOUGLAS BORKO,

THE REV. DR. JIMMIE L. GENTLE,

KATHY BARBER HERSH,

THOMAS A. HORKAN, JR.,

THE REV. FRED B. MORRIS,

REV. FRANKLIN P. SMITH, and

THE REV. DR. BARRY SNOWDEN,

     Petitioners,

v.

SANDRA MORTHAM, in her

official capacity as

Secretary of State,

     Respondent.

Case No.

FLORIDA BAR NUMBER 318371

PETITION FOR WRIT OF MANDAMUS

Petitioners, The Rev. Dr. James Armstrong, The Rev. Dr. Douglas Borko, The Rev. Dr. Jimmie L. Gentle, Kathy Barber Hersh, Thomas A. Horkan, Jr., The Rev. Fred B. Morris, Rev. Franklin P. Smith, and The Rev. Dr. Barry Snowden, by and through undersigned counsel, sue the respondent, Sandra Mortham, in her official capacity as Secretary of State, and request that this Court issue a Writ of Mandamus declaring the ballot title and summary of House Joint Resolution 3505 legally deficient, and order Amendment Two’s removal from the ballot for the November 3, 1998 general election. As grounds therefor, the petitioners allege as follows:

Jurisdiction

1. This Court has original jurisdiction to issue a writ of mandamus against a state officer where as here there are no disputed issues of fact and the only issue is purely legal, pursuant to Article V, § 5(b)(8), Fla. Const. and in accordance with Rule 9.030(a)(3), Fla. R. App. P. Hess By & Through Hess v. Metro. Dade County, 467 So. 2d 297, 298 (Fla. 1985) ("In Fine, we held that mandamus was an appropriate remedy to challenge the constitutionality of a proposed constitutional amendment involving only straightforward legal questions that did not require fact-finding."), citing Fine v. Firestone, 448 So. 2d 984, 985 (Fla. 1984).

Parties

2. The petitioner, The Rev. Dr. James Armstrong, past President, National Council of Churches and Florida Council of Churches, and current Pastor, First Congregational Church, Winter Park, Florida, is a citizen and taxpayer of the State of Florida and is a qualified voter of Seminole County within the meaning of § 97.041, Fla. Stat. (1997).

3. The petitioner, The Rev. Dr. Douglas Borko, Conference Minister, Florida Conference of the United Church of Christ, is a citizen and taxpayer of the State of Florida and is a qualified voter of Orange County within the meaning of § 97.041, Fla. Stat. (1997).

4. The petitioner, The Rev. Dr. Jimmie L. Gentle, Regional Minister, The Christian Church (Disciples of Christ), Florida Region, is a citizen and taxpayer of the State of Florida and is a qualified voter of Seminole County within the meaning of § 97.041, Fla. Stat. (1997).

5. The petitioner, Kathy Barber Hersh, Representative, South East Yearly Meeting of Friends (Quakers), is a citizen and taxpayer of the State of Florida and is a qualified voter of Miami-Dade County within the meaning of § 97.041, Fla. Stat. (1997).

6. The petitioner, Thomas A. Horkan, Jr., General Counsel, Florida Catholic Conference, is a citizen and taxpayer of the State of Florida and is a qualified voter of Leon County within the meaning of § 97.041, Fla. Stat. (1997).

7. The petitioner, The Rev. Fred B. Morris, Executive Director, Florida Council of Churches, is a citizen and taxpayer of the State of Florida and is a qualified voter of Seminole County within the meaning of § 97.041, Fla. Stat. (1997).

8. The petitioner, Rev. Franklin P. Smith, Counselor, Miami District, United Methodist Church, is a citizen and taxpayer of the State of Florida and is a qualified voter of Miami-Dade County within the meaning of § 97.041, Fla. Stat. (1997).

9. The petitioner, The Rev. Dr. Barry Snowden, President, Florida Council of Churches, is a citizen and taxpayer of the State of Florida and is a qualified voter of Seminole County within the meaning of § 97.041, Fla. Stat. (1997).

10. The respondent, Sandra Mortham, is the Secretary of State of Florida and she is sued in her official capacity only. As Secretary of State, she is the chief elections officer pursuant to § 97.012, Fla. Stat. (1997).

Controversy

11. The legislature is empowered under the Florida Constitution to propose amendments for submission to the voters. Art. XI, §§ 1 & 5(a), Fla. Const. Any resulting proposal must be embodied in a joint resolution. Art. XI, § 1, Fla. Const. The resolution must contain the wording which will appear on the ballot. § 101.161, Fla. Stat. (1997). The ballot text must consist of a short title and "an explanatory statement, not exceeding 75 words in length, of the chief purpose of the measure." Id.

12. The statute prescribing ballot summaries, section 101.161, implements the constitutional requirements of fair notice to the voters which has long been recognized by the Florida Supreme Court. The Court has explained that "[t]he purpose of section 101.161 is to assure that the electorate is advised of the true meaning, and ramifications, of an amendment" so that the voters are not "misled" and may "intelligently cast [their] ballot[s]." Askew v. Firestone, 421 So. 2d 151, 155-56 (Fla. 1982); accord Advisory Opinion to the Attorney General Re: Term Limits Pledge, 23 FLW S505, S507 (Fla. Oct. 1, 1998); Advisory Opinion to the Attorney General -- Restricts Laws Related to Discrimination, 632 So. 2d 1018, 1020 (Fla. 1994); Advisory Opinion to the Attorney General–Limited Political Terms in Certain Elective Offices, 592 So. 2d 225, 228 (Fla. 1991); Evans v. Firestone, 457 So. 2d 1351, 1355 (Fla. 1984).

13. On May 5, 1998, the Legislature filed with the respondent House Joint Resolution 3505 to place on the ballot Amendment Two amending Article 1, Section 17 of the Florida Constitution. Exhs. A & B.

14. The ballot title and summary of the proposed Amendment Two, also drafted by the Legislature as a part of House Joint Resolution 3505, will be on the ballot. § 101.161, Fla. Stat.; Art. XI, §5(a), Fla. Const.

15. The Ballot Title and Summary to House Joint Resolution 3505 provides:

16. The respondent is undertaking to submit the ballot title and summary to the electorate for the November 3, 1998 election and in that process is expending public funds for its printing and distribution. The respondent views her duties in placing the measure on the ballot as ministerial and that she lacks the discretion to remove it. Rule 1C-7.09(1), Fla. Admin. Code.

17. The ballot title and summary is required to be an explanatory statement of the chief purpose of a proposed amendment, written "in clear and unambiguous language for the ballot." § 101.161, Fla. Stat. It is not. The ballot title and summary violates Florida law because it fails to explain the chief purpose of the proposal in clear and unambiguous language and because it is misleading. Id.; Art. XI, § 5, Fla. Const. The ballot title and summary is unclear, ambiguous and misleading because:

a. it conveys the impression that the death penalty needs to be preserved because it is threatened, which it is not;

b. it fails to disclose and give notice that the current prohibition against "cruel or unusual punishment" would be changed to "cruel and unusual punishment" and that this change would apply to all punishments in Florida, not simply the death penalty; indeed, the ballot summary uses the phraseology "cruel and/or unusual punishment," even though the full text of the amendment changes it to "cruel and unusual punishment" (emphasis supplied); and

c. it fails to give notice that it would arguably alter the separation of powers under the Constitution by allowing the legislature to have the unfettered discretion as to the crimes susceptible to the death penalty and the method of execution without approval by the Governor, or an override of the Governor’s veto, and without any judicial oversight.

Amendment Two is Not Necessary

18. Amendment Two’s title, "Preservation of the Death Penalty," is misleading because it suggests a peril that does not exist. The title and summary both imply to voters that, if they do not approve the proposed amendment, the death penalty in Florida will be abolished. This is simply untrue. In 1994, the Supreme Court found a virtually identical flaw in the title of a proposed amendment to "Save Our Everglades." Advisory Opinion to the Attorney General -- Save Our Everglades, 636 So. 2d 1336, 1341 (1994). The Court held that the title "Save Our Everglades" was misleading in violation of § 101.161, because "[i]t implies that the Everglades is lost, or in danger of being lost, to the citizens of our State, and needs to be ‘saved’ via the proposed amendment." The Court further noted that "a voter responding to the emotional language of the title could well be misled as to the contents and purpose of the proposed amendment." Id. Voters responding to the emotional plea to "preserv[e] the death penalty" may similarly be misled as to the contents and purpose of proposed Amendment Two.

19. Even if the "[p]reservation of the death penalty" language is construed in light of the summary’s further provision that the amendment "[p]rohibits reduction of a death sentence based on invalidity of execution method," it is still misleading. It fails to disclose that the legislature has already enacted a statute that provides for death sentences to be carried out by lethal injection in the event that the electric chair is declared unconstitutional. § 922.105, Fla. Stat. (1998).

20. In Askew, 421 So. 2d at 155, the Court held that the ballot summary of an amendment proposed by the legislature was invalid because, while it purported to limit lobbying, it "neglect[ed] to advise the public" that a more comprehensive ban on lobbying was already in effect, so that "the amendment's chief effect" was to weaken existing restrictions. In Evans, 457 So. 2d at 1355, the ballot summary stated that the amendment "‘establishes’ citizen's rights in civil suits." One of the "rights" specified in the text was the right "for a court to dispose of lawsuits when no dispute exists over the material facts" -- that is, summary judgment. The Court found the "establishes" language in the summary to be inaccurate and misleading because the summary judgment "provision has long been established in Florida." Id. Thus, the actual "effect of the amendment was to elevate the procedural rule to a constitutional right," but the summary failed to inform voters of that fact. Id. Finally, in Advisory Opinion to the Attorney General re Casino Authorization, Taxation, and Regulation, 656 So. 2d 466, 469 (Fla. 1995), the Court held that a ballot summary which stated that the proposed amendment would "prohibit casinos unless approved by the voters

. . ." was fatally defective because "it suggests that the amendment is necessary to prohibit casinos in this state," creating "the false impression that casinos are now allowed in Florida" when, in fact "most types of casino gambling are currently prohibited by statute."

21. Like the ballot summaries at issue in Askew, Evans and Casino Authorization, the ballot summary for Amendment Two suggests that the amendment is necessary to accomplish something that is, in fact, already accomplished by existing law. The summary states that Amendment Two "[p]rohibits reduction of a death sentence based on invalidity of execution method," suggesting that such a reduction is not now prohibited. In fact, the legislature has already followed Justice Harding’s advice in his separate concurrence in Jones v. State, 701 so. 2d 76, 80 (Fla. 1997), cert. denied, 118 S.Ct. 1297 (1998), and passed legislation to ensure that, if the electric chair is ever declared unconstitutional under state or federal law, lethal injection would become the alternative method of execution. Newly-enacted section 922.105, Florida Statutes, provides expressly that, if electrocution is ever found to be a constitutionally unacceptable method of execution, "all persons sentenced to death for a capital crime shall be executed by lethal injection." The statute provides expressly for retroactive application, and there is no ex post facto clause violation in applying retroactively a change in the method of execution. § 922.105, Fla. Stat. (1998); Malloy v. South Carolina, 237 U.S. 180 (1915). Florida law therefore already ensures that a death sentence will not be reduced to life in the event the electric chair is declared unconstitutional. The ballot title and summary is therefore impermissibly misleading.

The Ballot Title and Summary Also Fail to Disclose

22. The ballot summary for Amendment Two is also misleading because of "what it does not say." Askew, 421 So. 2d at 156; accord Term Limits Pledge, 23 FLW at S507; Advisory Opinion to the Attorney General re Fish and Wildlife Conservation Comm’n, 705 So. 2d 1351, 1355 (Fla. 1998); Casino Authorization, 656 So. 2d at 469. The ballot summary states that the proposed amendment "[r]equires construction of the prohibition against cruel and/or unusual punishment to conform to United States Supreme Court interpretation of the Eighth Amendment." The ambiguous reference to "cruel and/or unusual punishment" does not clearly advise voters that the text of the Florida Constitution will actually be altered to substitute "and" for "or," nor does the summary give any hint that this change will limit the rights of Florida citizens accused or convicted of any crime, from shoplifting to driving under the influence, not just the rights of Death Row inmates.

23. In Laws Related to Discrimination, 632 So. 2d at 1021, the Florida Supreme Court held that a ballot summary was invalid because it "fails to state that the proposed amendment would curtail the authority of government entities." The summary explained that the proposed amendment "[r]estricts laws related to discrimination to classifications based upon race, color, religion, sex, national origin, age, handicap, ethnic background, marital status or familial status" and "[r]epeals all laws inconsistent with this amendment." Id. at 1020. The summary failed to make clear, however, that the proposed amendment would "restrict the power of governmental entities to enact or adopt any law in the future that protects a group from discrimination, if that group is not mentioned in the summary." Id. at 1021.

24. The excessive punishments clause of the Florida Constitution presently prohibits punishments that are either "cruel or unusual" and is therefore potentially broader than the Eighth Amendment to the federal constitution, which prohibits only punishments that are both cruel and unusual. Compare U.S. Const. amend. VIII and Fla. Const. art. I, § 17; see Allen v. State, 636 So. 2d 494, 497 & n.5 (Fla. 1994); Hale v. State, 630 So. 2d 521, 526 (Fla. 1993), cert. denied, 513 U.S. 909 (1994); Tillman v. State, 591 So. 2d 167, 169 n.2 (Fla. 1991). The Florida Supreme Court has held that Article I, Section 17 permits an appellate court to undertake proportionality review of a non-death sentence "in a proper case." Williams v. State, 630 So. 2d 534 (Fla. 1993); Hale, 630 So. 2d at 525-26.

25. By conforming the language of Article I, Section 17 to that of the Eighth Amendment, and requiring that the Florida Constitution "be construed in conformity with decisions of the United States Supreme Court which interpret the prohibition against cruel and unusual punishment provided in the Eighth Amendment to the United States Constitution," Amendment Two would preclude Florida courts from ever holding that a sentence for any crime (from shoplifting to DUI) was disproportionate as a matter of state constitutional law unless it was also disproportionate under the minimal standards of the federal constitution. See Harmelin v. Michigan, 501 U.S. 957 (1991).

26. The title and summary of Amendment Two, which characterize the purpose of the proposed amendment as being to "preserv[e] the death penalty," thus fail to disclose that the amendment would also restrict the power of Florida courts to review the proportionality of punishments for all noncapital as well as capital offenses. As in Laws Related to Discrimination, 632 So. 2d at 1021, the "omission of such material information is misleading and precludes voters from being able to cast their ballots intelligently."

27. The second and fifth sentences of this proposed amendment state: "[t]he death penalty is an authorized punishment for crimes designated by the Legislature," and later that, "[m]ethods of execution may be designated by the legislature, ..." (emphasis supplied). The language of the proposed amendment is markedly different from other constitutional provisions which state that ". . [t]he legislature shall enact legislation implementing . .," Art. I, § 8(c), Fla. Const., or "[t]he legislature, however, may provide by general law . .," Art. I, § 24(c), Fla. Const. The deliberate choice of the word "designated" twice to describe the legislature’s action implies that the legislature will have the unfettered discretion to select the crimes for which the death penalty is authorized as well as the methods of execution without the possibility of executive approval and veto as set forth in Art. III, § 8, Fla. Const.

28. Accordingly, the title and ballot summary fail to disclose that the proposed amendment would radically change our constitutional separation of powers and take away an important protection vested in the people of Florida, namely approval or veto by the executive branch and, if vetoed, the requirement of a legislative override.

29. The voter is not informed at all in the ballot summary that it will be the legislature -- and the legislature alone -- that will thereafter possess the constitutional power to designate those crimes punishable by death and the methods of capital punishment.

30. Prior ballot summaries have failed for less serious flaws. In Askew, the ballot summary fully and accurately disclosed how, in the text of the amendment, lobbying activities of former office holders would be restricted. The ballot summary was struck by the Court because it failed to disclose that the amendment created a change in the already existing restrictions upon lobbying activities. The Court held that the "problem therefore, lies not with what the summary says, but, rather what it does not say." Id., 156; Term Limits Pledge, 23 FLW at S507. If a ballot summary which accurately describes the text of an amendment can be stricken for "what it doesn’t say," then this ballot summary, which omits any mention whatsoever of the new powers designated by the legislature to itself, must be stricken for what it fails to say.

31. Furthermore, as in Askew, the voter here is not informed in the ballot summary of the dramatic changes this amendment will have on the separation of powers, the legislative process and possible judicial review. Article III, Sections 7, 8, and 9 of the Florida Constitution pertain to the passage of legislation, gubernatorial veto and legislative override of vetoes. Article V, Sections 3, 4, and 5 pertain, inter alia, to the powers and duties of Florida’s courts to review and interpret legislation. By designating the legislature as the sole determiner of crimes punishable by death and the methods of execution, this amendment arguably circumvents the constitutionally mandated processes of legislation, executive oversight and judicial review. Presently, the only situation in which the legislature can constitutionally "act alone" is "in periods of emergency resulting from enemy attack." Art. II, § 6, Fla. Const. The drafters of the Constitution made it clear that the legislature could depart from other requirements of this constitution during enemy attack, "but only to the extent necessary to meet this emergency." Id. Is death penalty legislation without gubernatorial and judicial oversight the type of emergency measure resulting from enemy attack that merits unbridled legislative decisionmaking? Certainly not. And even if it is, the electorate must be notified in the summary as to what is about to occur. Term Limits Pledge, 23 FLW at S507.

32. As a result, the ballot summary fails to alert the voter of the amendment’s effect on long established and well settled constitutional principles and divisions of power. Again, many ballot summaries have failed for far less. In Advisory Opinion to the Attorney General Re Fish and Wildlife Conservation and Commission, 705 So. 2d. 1351 (Fla. 1998), the ballot summary accurately pointed out that two commissions would be combined into one. However, the Florida Supreme Court struck the summary because it failed to delineate the differing constitutional status of each of the entities to be combined. The summary did, "not sufficiently inform the public of this transfer of power." Id., at 1355 (emphasis supplied).

33. In Term Limits Pledge, 23 FLW at S507, this Court recently struck a ballot summary and title because it was silent as to the constitutional ramifications and the new discretionary authority to be vested in the Secretary of State. Amendment 2 fails here for the same reason.

Conclusion

34. The Florida Supreme Court has held repeatedly that a "proposed amendment," whether propounded by the legislature or by citizens’ initiative, "cannot fly under false colors." Askew, 421 So. 2d at 156; Save Our Everglades, 636 So. 2d at 1341. Proposed Amendment Two is flying under false colors. The title and ballot summary, which convey falsely to voters that the proposed amendment is an up-or-down vote on retaining the death penalty in Florida, "more closely resemble[ ] political rhetoric than . . . an accurate and informative synopsis of the meaning and effect of the proposed amendment." Save Our Everglades, 636 So. 2d at 1342; Casino Authorization, 656 So. 2d at 469. The ballot summary fails to disclose that legislation already ensures that death sentences will not be commuted to life in the event the electric chair is found unconstitutional and that the amendment will also affect Florida courts’ ability to review non-capital as well capital cases.

35. The misleading ballot language and material omissions could well affect the outcome of the vote. If voters understood that the ballot title and summary simultaneously overstated the amendment’s effect on the death penalty, while understating (indeed, omitting to mention altogether) its impact on citizen’s rights in noncapital cases, they might well decline to alter the time-honored text of Article I, Section 17. If, on the other hand, they believe (incorrectly) that they are voting on whether or not to retain the death penalty in Florida and the proposed amendment is approved, it will have consequences the voters were never informed of.

36. The petitioners have no adequate remedy at law. No administrative procedure is available for challenging the validity of legislative action.

37. This dispute raises a justiciable question requiring a present declaration by the Court settling the doubt as to the extent of petitioners’ rights and ameliorating the injury being inflicted upon the petitioners and the voting public at large.

Relief Requested

WHEREFORE, the petitioners request this Court to:

a. Declare the ballot title and summary violative of Florida law;

b. Order the Secretary of State to refrain from placing the ballot title and summary of House Joint Resolution 3505 on the November 3, 1998 general election ballot and from expending any public funds associated with placing the measure on the ballot; and

c. Award such other relief as the Court may deem just and proper.

Respectfully submitted,

Randall C. Berg, Jr., Esq.

Peter M. Siegel, Esq.

JoNel Newman, Esq.

Florida Justice Institute, Inc.

2870 First Union Financial Center

200 South Biscayne Boulevard

Miami, Florida 33131-2309

305-358-2081

305-358-0910 fax

Attorneys for Petitioners

By: _____________________________

Randall C. Berg, Jr., Esq.

Florida Bar No. 318371

Certificate of Service

I certify that a copy hereof has been furnished to Sandra Mortham, Secretary of State, Respondent, and Robert Butterworth, Attorney General, State of Florida, The Capitol, Tallahassee, Florida by hand delivery this 9th day of October, 1998.

Attorneys for Petitioners

By: _____________________________

Randall C. Berg, Jr., Esq.

Florida Bar No. 318371

Amend.2\Writ