Why Did Justices Take Health Care Freedom Amendment Off 2010 Ballot?

By: Eric Giunta | Posted: November 5, 2012 3:55 AM

In this final installment of our exclusive series on the judicial retention races, Sunshine State News takes a look at the ruling that inspired the formation of the campaign to unseat Florida Supreme Court Justices Barbara Pariente, R. Fred Lewis, and Peggy Quince.

The case (Florida Department of State v. Mangat) centered on the so-called Florida Health Care Freedom Amendment, a measure that would have appeared on the Florida ballot as Amendment 9 during the November 2010 general election.  If passed, the measure would have registered Floridians’ symbolic protest against the health insurance mandates of the federal Patient Protection and Affordable Care Act (“Obamacare”), and prevented the Florida Legislature from implementing statewide versions of such mandates.

Four plaintiffs (among them one Mona Mangat) sued to have the measure removed from the ballot, on the grounds that the amendment summary the Florida Legislature placed on the ballot was misleading. That summary read, in part:

“HEALTH CARE SERVICES.—Proposing an amendment to the state Constitution to ensure access to health care services without waiting lists, protect the doctor-patient relationship, guard against mandates that don‘t work, prohibit laws or rules from compelling any person, employer, or health care provider to participate in any health care system ...” (emphasis added)

The trial court agreed that the italicized portion was misleading, and ordered Amendment 9 removed from the ballot. As the Florida Supreme Court later summarized that court’s finding:

“[A] citizen reading the statement ‘to ensure access to health care services without waiting lists’ ‘could only conclude that once [the amendment was] passed a constitutional right would exist to obtain a doctor of one‘s choice without being put on a waiting list,’ while the amendment itself says nothing about waiting lists. ... [A]second statement in the ballot summary provides that the amendment will ‘protect the doctor-patient relationship,’‖ but the amendment itself says nothing about this relationship and does not have anything to do with doctor-patient confidentiality. Finally, the summary states that the amendment will ‘guard against mandates that don‘t work,’ but neither the summary nor the amendment explains what mandates are at issue, why they do not work, or for whom the mandates do not work. ... [T]his statement is a subjective term intended to influence a voter‘s decision on the amendment. ... [A]ll of these phrases are examples of comments that ... may not be included in ballot summaries.”

In its appeal before the Supreme Court, the Florida Department of State (FDOS) conceded that the language contained in the summary was misleading, but urged that the appropriate remedy was not to strike the measure off the ballot, but to remove the summary and place before voters, instead, the full text of the amendment itself.

In a 5-2 decision the high court – including Justices Pariente, Lewis, and Quince – denied the government’s suggestion and upheld the trial court ruling. It did so on the grounds that it had no statutory authority to take the course of action urged by FDOS, and that the Legislature could have chosen to include the full text of the amendment on the ballot, but had declined to do so.

Supporters of the justices argue that this ruling was a veritable model of judicial restraint, and that critics of the justices – in particular, Restore Justice 2012 and Americans for Prosperity – are simply sulking because the outcome of the case was not favorable to their ideologically conservative/libertarian cause.

But these critics refer to the dissent in the case, authored by Justice Charles T. Canady and joined by Justice Ricky Polston. Canady pointed out that, in ruling the way it did, the court violated its own precedents: While the court had always declined to rewrite misleading ballot summaries, it had substituted those summaries with amendment texts before. Indeed, it did so just six years earlier – in a ruling joined by Justices Pariente, Lewis and Quince.

In that 2004 case, ACLU v. Hood, the proposed amendment in question was one that established a parental notification requirement for a minor seeking an abortion. The ballot summary was found to be misleading, and the court – again, including Pariente, Lewis, and Quince – unanimously ruled to replace the summary with the actual text of the amendment, which was subsequently approved by voters in the 2004 general election.

Why did Pariente, Lewis, and Quince feel free to do in 2004 what six years later they said they had no authority to?

We won’t know anytime soon. While the three justices have been interviewing with newspaper editorial boards around the state throughout the course of the retention campaign, no news source is asking them the tough questions about their judicial record or about their legal philosophies. Sunshine State News reached out to them several times over the past several weeks, only to be contacted by a joint-campaign representative, who said the justices are specifically refusing to interview with the News, Florida’s only center-right news organization.

Voters will have their opportunity to sound off on “health care freedom” after all; the summary’s been cleaned up, and the measure is once again on the ballot as Amendment 1, the Florida Health Care Amendment.

Reach Eric Giunta at egiunta@sunshinestatenews or at 954-235-9116.


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