On Florida’s biggest legal stage, attorney inadvertently admits deregulation ballot language is inconsistent, misleading

by | Aug 30, 2019

Something unusual happened in the state’s new-look Florida Supreme Court this week when a lawyer appeared to make an admission undercutting his own case.

On Wednesday, lawyers on both sides of a controversial constitutional amendment proposal made oral arguments debating proposed ballot language that voters might see in the polling booth in November 2020. The ballot measure would ask voters to decide whether or not to deregulate Florida’s energy markets, which would block existing power companies from selling electricity, allow all new companies to produce energy in Florida, and force consumers to choose new energy providers, even if they are satisfied with their current provider.

Florida law requires all such ballot measures to be “single issue” questions so that voters aren’t faced with issues that are overly complex, misleading or confusing. A legal brief filed by Attorney General Ashley Moody argued exactly that, saying the proposed language “hid the ball” from voters and was misleading in that it would strip consumers of their right to choose to stay with their current energy provider. An attorney for Moody’s office told the court Wednesday that the ballot language claims to give Floridians “choice,” but “the only thing that this initiative does is to take away the current electricity provider as a choice for over seventy-five percent of Floridians.”

While most of the hour and twelve minute hearing seemed the typical back-and-forth between lawyers and justices, Florida Supreme Court Justice Robert Luck appeared to score a significant admission from attorney Warren Rhea, who was there on behalf of energy suppliers including Infinite Energy, a natural gas company whose executives are pushing for the deregulation scheme.

The exchange played out during questions and answers when Luck was seeking clarification from Rhea about seemingly contradictory language between the ballot summary, which most voters will use to make their decision, and the actual legal language of the proposal.

After Rhea told the court that the actual legal language of proposal would prevent any company from owning or controlling a complete vertical electricity supply chain which includes generating, selling and transmitting electricity, Luck circled back and asked about the specific language voters would see in the ballot summary.

“How is that not inconsistent with the right that’s now established to me by the ballot summary, that I can sell my own electricity?” Luck asked.

Rhea appeared to be caught off-guard.

“Ah, well, now, you can imagine a situation where there’s, ah…” Reah muttered, then, “…actually that’s a good point.”

Luck then elicited laughter from the gallery when he quipped, “It’s rare when someone admits that. Thank you.”

The moment can be viewed on the Florida Channel at the 1:00:10 mark.

A few moments later, Luck seemed to agree with earlier points raised by Justices Ricky Polston and Carlos Muniz centered around whether or not the ballot summary language presented to voters was “affirmatively misleading.”

Earlier in the arguments, Chief Justice Charles Canady also appeared to agree. “A summary cannot be affirmatively misleading. It cannot state something that is untrue,” he said, then again challenged the amendment’s sponsor, Ken Sukhia: “I’m having trouble seeing how we can follow that principle and uphold this given that I can’t find that guarantee in the actual text of the amendment.”

With oral arguments concluded, the justices will now deliberate and issue an opinion at some point over the next thirty to ninety days. Their ruling will determine whether the ballot initiative can move forward or be scrapped entirely.




1 Comment

  1. Nick Cangemi

    It’s fortunate that we have lawyers who can figure stuff like this out!

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