Gelber Schachter & Greenberg is proud to announce that it has once again been honored by Chambers and Partners, one […]
November 2, 2016 – 10:00pm
The Florida Supreme Court heard arguments Wednesday about a proposed constitutional amendment that could severely limit the expansion of gambling in Florida by giving voters, instead of state lawmakers or counties, control over casino-style games
Supporters hope to get the “Voter Control of Gambling in Florida” proposal on the 2018 ballot, but, before that happens, the Supreme Court has to decide whether the ballot summary is clear and whether the measure adheres to a “single-subject” requirement of citizens’ initiatives.
Much of Wednesday’s arguments focused on whether voters would know that, by endorsing the proposal, they would be taking away control of casino-type gambling decisions from the Legislature and county officials.
Lawyer Adam Schachter, who represents Voters in Charge, the committee behind the proposed amendment, pointed out that the state high court is poised to decide whether Gretna Racing, a tiny pari-mutuel in rural Gadsden County, can have slot machines. That ruling is expected to have a wide-ranging impact; Voters in five other counties — Brevard, Hamilton, Lee, Palm Beach and Washington — have also approved slots at local tracks or jai alai frontons.
The Gretna case — centered on whether gambling operators can add slots if county voters give the go-ahead, even without the express permission of the Legislature — exemplifies the need for the proposed constitutional change, Schachter argued.
“There is a lack of clarity on this,” Schachter told the justices. “This amendment … would provide the needed clarity.”
Justice Ricky Polston asked Schachter what impact the proposal would have on a constitutional amendment passed in 2004 that authorized slot machines in Miami-Dade and Broward counties. Under that amendment, local voters also had to approve the slot machines.
“We don’t know yet,” Schachter responded, adding that it is uncertain how the Legislature will implement the proposed amendment if it passes or what future citizens’ initiatives might do.
“Isn’t that problematic, for the summary?” Polston asked.
But Schachter said that was not an issue because the ballot summary “need not offer speculation” about how a constitutional change would affect existing laws.
But Justice Barbara Pariente wasn’t satisfied.
“Doesn’t the public have the right to know if the second amendment is going to wreak havoc with the first amendment?” she asked.
Lawyer Marc Dunbar, representing a number of gambling interests opposed to the proposal, warned that the constitutional change, if approved, would lead to “a ridiculous amount of litigation” over its interpretation.
And, Dunbar argued, the measure could create problems for pari-mutuels by applying retroactively to slot machines already authorized — which proponents said it will not do — and doing away with legislative control of gambling.
“It’s taking away from everybody that has had it for the past 150 years … overturning all precedent … and saying if you want it back, you have to have a constitutional amendment,” an increasingly incensed Dunbar argued, his raised voice earning an admonishment from Pariente.
“Let’s calm down here,” she said.
Dunbar also said the proposal is misleading because voters might not know that the measure could have a chilling effect, using as an example arcade games such as “claw” machines, which were caught up in a law aimed at shutting down internet cafes.
“Will (arcades) be frozen forevermore for any new product because they operate under a slot machine exemption?” Dunbar asked. “Will they have to go to a statewide initiative because they want a new arcade game?”
Dunbar also told the court it was incumbent on the justices to “tell the voters what the potential consequences” of the amendment would be as part of their analysis of whether the ballot summary is misleading or not.
But Pariente and Justice Charles Canady appeared to disagree with Dunbar.
“You’re suggesting it’s our role to … eliminate any ambiguities or questions or problems we foresee that might arise from the implementation of the amendment,” Canady asked.
Pariente noted that there is a different process for constitutional amendments placed on the ballot by the Legislature. The court is banned from stripping measures proposed by lawmakers from the ballot. Instead, the attorney general has an opportunity to address the court’s concerns.
The court’s authority when scrutinizing citizens’ initiatives is far more limited, she said.
“Although people think our role is voting on the merits … our role is to ensure that ballot title and summary accurately reflects the (amendment),” Pariente said.
Several justices also expressed concern about what exactly it would take to authorize slot machines. Schachter said the amendment would require a statewide vote to approve slots in any particular county.
At times, Polston and Canady — the most-conservative members of the court — appeared to try to aid proponents of the measure.
“If this passes … it’s not going to limit the authority of the people through the initiative process,” Canady said. “This is designed to limit the Legislature and others, not the people.”