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M E M O R A N D U M
TO: ALL PENSION CLIENTS
FROM: KLAUSNER, KAUFMAN, JENSEN & LEVINSON
RE: Florida Constitution Revision Commission - Amendment 6
DATE: September 12, 2018
______________________________________________________________________________
The purpose of this memo is to alert clients about the potential impact of Amendment 6,
which has been placed on the November 6, 2018 general election ballot in Florida. Amendment 6
contains several unrelated proposals which have been bundled together. Because of the
deceptively short title of Amendment 6, and the large number of items on the lengthy ballot, many voters may not understand that the proposal may have an adverse impact on administrative
agencies, including pension boards. For this reason, we encourage clients to carefully study
Amendment 6, which is summarized below.
Every twenty years the Florida Constitution Revision Commission (CRC) meets to examine and recommend updates to the Florida Constitution. After holding fifteen public
hearings across the state over the past two years, the CRC has recommended eight amendments
to the Florida Constitution. Each amendment would need to separately obtain 60% voter
approval to be adopted.
After studying the eight proposals, our office is advising pension clients of the potential
adverse impact of Amendment 6. Our office has no opinion on the other seven proposed
amendments.
Amendment 6 would add a new Section 21 into Article V of the Florida Constitution as follows:
SECTION 21. Judicial interpretation of statutes and rules.
In interpreting a state statute or rule, a state court or an officer hearing an administrative action pursuant to general law may not defer to an administrative
agency’s interpretation of such statute or rule, and must instead interpret such
statute or rule de novo.
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Discussion of the potential negative impact of Amendment 6:
Since 1952, the Florida Supreme Court has recognized the doctrine of judicial deference.
In general, courts will defer to administrative agencies, including pension boards, due to their expertise and familiarity dealing with a particular statute, rule or ordinance. The doctrine is
generally beneficial for pension boards.
As described by the CRC, Amendment 6, “requires judges and hearing officers to
independently interpret statutes and rules rather than deferring to government agency’s interpretation.” Our office is concerned that the loss of judicial deference may harm municipal
pension boards.
Admittedly, Amendment 6 only directly addresses judicial deference to judicial
interpretations of state statutes. Nonetheless, several municipal plans were created by special act of the Florida Legislature. Importantly, all local public safety plans operate under Chapter 175
and 185, which are state statutes. Moreover, Amendment 6 potentially creates a precedent which
will weaken judicial deference to municipal and special district boards.
The counter argument, of course, is that the weakening of the doctrine of judicial deference will strengthen the judiciary. To the extent that clients want a more powerful judicial
branch, this would be an advantage.
Rather than presenting Amendment 6 as a stand-alone amendment, the proposal is
combined with other amendments having nothing to do with judicial deference. For example, Amendment 6 also contains detailed provisions expanding victim’s rights in the criminal justice
system, which are beyond the scope of this memo. Nevertheless, the CRC is presenting
Amendment 6 under the seemingly innocuous title, “Rights of Crime Victims; Judges.”
The Florida Supreme Court is currently considering whether or not to strike Amendment 6 from the ballot. A lower court judge in Leon County has held that Amendment 6 was
misleading and improperly bundled unrelated proposals (a practice known as “logrolling”). We
anticipate a ruling shortly.
Our office is happy to answer any questions about Amendment 6. We encourage clients to carefully study Amendment 6 and look beyond the brief, five word title.