Center for Property Rights

2014 Fall Journal Excerp⁠t⁠: Amendmen⁠t⁠ Gu⁠i⁠de

By: The James Madison Institute / 2014

For PDF of Amendment Guide Only click Amendment Guide 2014.
TITLE: Water and Land Conservation – Dedicates funds to acquire and restore Florida conservation and recreation lands
REFERENCE: State Constitution, Article X, Section 28BALLOT LANGUAGE: Funds the Land Acquisition Trust Fund to acquire, restore, improve, and manage conservation lands including wetlands and forests; fish and wildlife habitat; lands protecting water resources and drinking water sources, including the Everglades, and the water quality of rivers, lakes, and streams; beaches and shores; outdoor recreational lands; working farms and ranches; and historic or geologic sites, by dedicating 33 percent of net revenues from the existing excise tax on documents for 20 years.IN BRIEF: Amendment 1 requires that during the next 20 years, at least 33 percent of the revenues derived from the existing tax levied on documents related to real estate transactions must be used to buy and manage Florida land for conservation efforts.ANALYSIS: Amendment 1 is being touted as an attempt to solve problems that Florida may experience in the future when it comes to protecting its water supply, preserving open space for recreation and other purposes, and safeguarding its natural environment. Conservation programs such as Florida Forever, which is the largest public land acquisition program in the United States, are already in place. However, supporters of Amendment 1 argue that Florida Forever’s source of revenue, the Land Acquisition Trust Fund, has not been consistently well-funded, especially during economic downturns. If Amendment 1 were approved by the required 60 percent of the voters this fall, then every time real estate changes hands in Florida, one-third of the documentary tax money would go to the Land Acquisition Trust Fund. In total, this earmark is projected to provide about $10 billion for this purpose over the 20 years it’s in effect. That amounts to about $500 million a year, on average, though it can fluctuate depending on the volume of real estate activity. This revenue, which is currently available for legislators to use for other state priorities, would be channeled into the state’s land-acquisition programs.PRO: Proponents of Amendment 1, which takes a portion of the proceeds from an existing tax and channels them to a particular purpose, argue that it is not a tax increase and will not lead to a tax increase. They also note that it will consume less than 1 percent of Florida’s state budget. In part, Amendment 1 is a response to the fact that the money available for Florida Forever declined in recent years as the recession slowed real estate activity and legislators looking for ways to plug holes in the state budget found other uses for the “doc stamp” money. Proponents of Amendment 1 note that this diversion of funds has left the state without enough money to acquire some very desirable properties on a lengthy “waiting list.” They argue that Amendment 1 would provide a way to alleviate the shortage that has hobbled the Florida Forever program in recent years. Money would go toward the purchase, management, and control over land in order to protect Florida features such as the Indian River Lagoon, the St. Johns River, and various other state lands and waters. Florida recently surpassed New York to become the nation’s third most populous state. With the continued growth of Florida’s population, the state can be expected to confront many problems related to land and water conservation. Proponents of Amendment 1 argue that its passage will help the state government have a consistent stream of revenue to deal with those problems.CON: Critics of Amendment 1 disagree with the proponents’ claim that its passage would not harm the state’s budget or lead to a tax hike. If this amendment were to pass, then in 2015 alone, approximately $648 million would be diverted to the Land Acquisition Trust Fund. The amendment’s opponents warn that this is a significant amount of money that could be better used to fund other priorities ranging from education to public safety. These critics also question the wisdom of tying up such large sums of money every year for the next 20 years. Indeed, they say that it’s such a long span of time that it’s difficult to anticipate with accuracy what the state’s needs will be, given unknowns ranging from natural disasters such as hurricanes to a recurrence of recessions. Amendment 1’s opponents also note that when a property moves from private ownership to the state government’s ownership, property taxes no longer are paid to support cities, counties, school districts, and water management districts. Instead, it becomes an expense for the state government, which must devote resources to manage it properly lest it become overrun with invasive species. The amendment’s opponents argue that this is a growing concern in a state where nearly one third of the acreage is already under government ownership, and some of it is poorly managed. Although Amendment 1’s opponents concede that few can argue against the need to protect Florida’s land and water, they nonetheless believe that tying up this much money for such a long period of time does not seem like the best solution.AMENDMENT 2
TITLE: Use of Marijuana for Certain Medical Conditions
REFERENCE: State Constitution, Article X, Section 29BALLOT LANGUAGE: Allows the medical use of marijuana for individuals with debilitating diseases as determined by a licensed Florida physician. Allows caregivers to assist patients’ medical use of marijuana. The Department of Health shall register and regulate centers that produce and distribute marijuana for medical purposes and shall issue identification cards to patients and caregivers. Applies only to Florida law. Does not authorize violations of federal law or any non-medical use, possession or production of marijuana.IN BRIEF: Amendment 2 legalizes marijuana in the State of Florida for medicinal purposes.ANALYSIS: With the passage of Amendment 2, Florida would join 23 other states and the District of Columbia in the legalization of medical marijuana in some form. The legalization of medical marijuana has been a very hot topic throughout the country for years, and seems certain to remain so. On June 16, 2014, Florida Gov. Rick Scott signed Florida’s Compassionate Medical Cannabis Act of 2014, which allows for the use of a low-THC strain of marijuana for medical purposes. This form of marijuana, widely known as “Charlotte’s web,” is not smoked and may be legally used only for the treatment of epilepsy, cancer, and ALS. Amendment 2 would allow for a much broader use of medical marijuana in Florida. In fact, critics ranging from Attorney General Pam Bondi to a bipartisan group of retired Florida Supreme Court justices  argue that Amendment 2’s language is overly broad and leaves many questions unanswered. In states where medical marijuana is already legal, it is taxed and regulated. In Florida, the requisite legislation is not yet in place, so there is no way for voters this fall to know how it would be taxed and regulated. Moreover, in some of the states that have legalized medical marijuana, there is evidence that regulations such as those intended to restrict it to medical uses or to keep it out of the hands of minors are widely ignored. If Amendment 2 were to pass, legislation and administrative action would be required.PRO: Proponents of Amendment 2 argue that it will help people cope with and/or recover from debilitating illnesses. Opinion polls suggest that this argument has been enough to cause many Floridians to support the amendment, without necessarily making a further examination of the details. Amendment 2 is similar to many other states’ provisions for the legalization of medical marijuana for purposes beyond those very limited ones authorized in the Compassionate Medical Cannabis Act of 2014. Amendment 2’s proponents argue that the marijuana derivative authorized by that statute is not sufficient to help patients, and it can only be prescribed for patients with one of three particular illnesses. This amendment will open up the law in Florida to encompass more forms of medicinal marijuana and a much broader group of patients who may legally obtain marijuana. Proponents add that it is important to note that only a Florida-licensed physician would be authorized to prescribe medical marijuana. Proponents also argue that the passage of Amendment 2 could end situations in which desperate patients, some of them terminally ill and in great pain, were prosecuted and given harsh sentences for illegally obtaining marijuana. Proponents argue that Amendment 2 would eliminate the need for patients to engage in such desperate and illegal activities, thereby saving the taxpayers the money that has been spent on prosecuting them in an overloaded criminal justice system and then, in some cases, incarcerating these patients, whereupon the government has been not only forced to keep them locked up at great expense but also to assume responsibility for cost
of their medical care.CON: Opponents of Amendment 2 cite varied reasons in arguing that the wider availability of marijuana in Florida would be harmful. They note that notwithstanding the legalization of medical marijuana in 23 states and the District of Columbia — and the legalization of marijuana for recreational uses in two states, Washington and Colorado — the possession and consumption of marijuana in any form nonetheless remains illegal under federal law. Meanwhile, even some Floridians who are generally supportive of legalizing medical marijuana have expressed misgivings about Amendment 2, which they say is much too vague. For instance, the language of the amendment states that medical marijuana can be used to help patients with one of nine different debilitating medical conditions. However, there is a clause after the listing of these nine illnesses that adds “…or other conditions for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for the patient.” This basically leaves it in the physician’s hands as to what they want to classify as debilitating or necessary. Some voters might perceive that provision as a welcome degree of flexibility; others, recalling Florida’s experience with the scourge of “pill mills” operated by unscrupulous physicians, may perceive this as a worrisome loophole. Another issue that concerns many opponents of Amendment 2 is the fact that parental consent is not required for a minor to obtain medical marijuana. That strikes some critics as ironic and paradoxical, given that a school nurse may get in trouble for giving a pupil an aspirin without parental consent. One beauty of the U.S. Constitution is that it left many decisions on public policy to the individual states. Despite the federal government’s recent unwelcome usurpation of state and local authority in areas ranging from education to the environment, there are subjects on which the states still may serve as true “laboratories of democracy” in which the residents may experiment with different approaches to complex issues. With regard to marijuana, those experiments are already underway. Supporters of Amendment 2 want Florida to emulate those other states. Opponents of Amendment 2 argue that it would be more prudent for Florida to take a wait-and-see attitude, carefully observing the economic and social consequences of marijuana legalization in other states. Meanwhile, for many Floridians, even some who support medical marijuana on principle, Amendment 2 simply has too many flaws.AMENDMENT 3
TITLE: Prospective Appointment of Certain Judicial Vacancies
REFERENCE: State Constitution, Article V, Sections 10, 11BALLOT LANGUAGE: Proposing an amendment to the State Constitution requiring the Governor to prospectively fill vacancies in a judicial office to which election for retention applies resulting from the justice’s or judge’s reaching the mandatory retirement age or failure to qualify for a retention election; and allowing prospective appointments if a justice or judge is not retained at an election. Currently, the Governor may not fill an expected vacancy until the current justice’s or judge’s term expires.IN BRIEF: The outgoing Governor may appoint any judge or justice to a vacancy that occurs on or before the gubernatorial inauguration day.ANALYSIS: Amendment 3, this year’s only amendment placed on the ballot by the Legislature, was introduced by Sen. Tom Lee, R-Brandon. It seeks to clarify the process of appointing persons to replace departing justices of the Florida Supreme Court and departing judges of the district courts of appeal. Currently, the state Constitution lacks clarity on this issue and does not specify the actions that should be taken to fill the aforesaid vacancies. It is less than clear if the incoming or outgoing Governor should make appointments when a vacancy occurs on the cusp of a change in the Governorship. Supreme Court justices are required to retire at age 70, although they may complete their six-year term if less than half of that term remains. In 1998, before he died during his final month in office, the outgoing Gov. Lawton Chiles and the newly elected Gov. Jeb Bush disagreed on who had the legal authority to appoint a justice to replace Justice Gerald Kogan, who was retiring after 12 years on the Court. Instead of publicly debating and arguing the underlying procedural issue, however, they left it unresolved as they made a joint announcement appointing Justice Peggy Quince to the Florida Supreme Court. However, it cannot be taken for granted that future outgoing/incoming Governors would always be willing or able to work together to reach such an accommodation. The Florida Supreme Court consists of seven justices. Unless one or more of the current justices resign prior to retirement, the following parade of retirements will occur: Justice James E.C. Perry will retire in January 2017, and Justices R. Fred Lewis, Barbara Pariente, and Peggy Quince will all turn 70 at some point during the next Governor’s term and subsequently will be forced to retire by the time that Governor’s term ends on January 8, 2019. With the passage of Amendment 3, it will be clear that as many as four of the seven Supreme Court justices could be appointed by the Governor elected this November rather than left for that Governor’s successor to appoint.PRO: Amendment 3 sets in place guidelines and specifications for a currently unclarified portion of the state Constitution. Proponents of the amendment say that it is completely unbiased and nonpartisan because no one knows who will win the upcoming election. It could be a member of either political party. This amendment would ensure that there would be no extended periods of time where Florida would be without a full complement of Supreme Court justices on the bench. This amendment clarifies the Supreme Court justice appointment process with rules for the Governor to follow. If Amendment 3 does not pass, then there could be a conflict between the outgoing and incoming Governors concerning the three Supreme Court justice appointments in 2019.CON: Some opponents of Amendment 3 argue that the departing Governor should not be the one to appoint justices who will serve during — and probably far beyond — the term of an incoming Governor who presumably has won a fresh political mandate from voters. Opponents therefore believe that the incoming Governor should be able to fill these vacancies. Some opponents also have qualms about the thought that a departing Governor could appoint a majority of the seven member court — four justices who could end up serving for decades.By: Travis Keels is Director of Public Affairs for The James Madison Institute.