Did Florida's AG ask the state Supreme Court to review the proposed 'Voter Control of Gambling' constitutional amendment?

Plain-English summary

This document is not an Attorney General opinion in the usual sense. It is the AG's statutorily required petition to the Florida Supreme Court asking the Court for an advisory opinion on a proposed constitutional amendment by citizens' initiative. Article IV, section 10 of the Florida Constitution and section 16.061, Florida Statutes, make the AG the gatekeeper between an initiative that has cleared the early signature-collection threshold and the Court's review for ballot-eligibility.

The initiative at issue was sponsored by Voters in Charge, chaired by John Sowinski, and was titled "Voter Control of Gambling in Florida." It would have added a new section 29 to Article X of the Florida Constitution, requiring that any authorization of casino gambling in Florida go through the citizens' initiative process under Article XI, section 3, rather than through ordinary legislation. The proposed amendment defined "casino gambling" by reference to the federal Indian Gaming Regulatory Act's "Class III gaming" category, and exempted pari-mutuel wagering on horse racing, dog racing, and jai alai. It carved out room for the legislature to restrict or tax gambling, and preserved state-tribal compacts under IGRA.

AG Pam Bondi's petition was procedural. She certified the basic facts (the Secretary of State had advised that the petition met the registration, submission, and signature criteria of section 15.21), supplied the address of the sponsor, noted that the sponsor had collected only 73,760 of the 683,149 valid signatures needed for the 2016 ballot, identified the earliest possible election date (November 6, 2018) if the sponsor reached 683,149 valid signatures by February 1, 2018, and told the Court the Financial Impact Statement would arrive by May 20, 2016. She then asked the Court to opine on whether the proposed amendment met the single-subject requirement of Article XI, section 3, Florida Constitution, and whether its ballot title and summary complied with the substantive and technical requirements of section 101.161(1), Florida Statutes.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Court ultimately approved the initiative (Advisory Opinion to the Attorney General re: Voter Control of Gambling, 215 So. 3d 1209 (Fla. 2017)), and the amendment was placed on the November 2018 general election ballot as Amendment 3, where Florida voters approved it with about 71 percent in favor. The substantive law on Florida casino gambling is now governed by that amendment as adopted, not by the 2016 petition reproduced here. Anyone researching current gambling-authorization law should start with Article X, section 30 of the Florida Constitution and the post-2018 case law and statutory amendments, not this petition.

Common questions

Q: Why does the AG file a petition like this?
A: Florida law requires it. Article IV, section 10 of the Florida Constitution says the Attorney General "shall, as directed by general law, request the opinion of the justices of the supreme court as to the validity of any initiative petition circulated pursuant to Section 3 of Article XI." Section 16.061, Florida Statutes, implements that requirement and tells the AG to petition the Court once the Secretary of State certifies that the initiative has met its registration and early-signature thresholds. The AG's filing is not an endorsement or opposition; it is a procedural request for judicial review.

Q: What was the Supreme Court being asked to decide?
A: Two specific things. First, whether the initiative complied with Article XI, section 3's "single subject" rule, which requires a constitutional initiative to embrace only one substantive change. Second, whether the ballot title and summary satisfied section 101.161(1), Florida Statutes, which requires plain-English, accurate, and non-misleading framing of what voters are being asked to approve.

Q: What did the initiative actually propose?
A: A new section 29 of Article X of the Florida Constitution providing that Florida voters had the "exclusive right" to authorize casino gambling, with that authorization required to go through Article XI, section 3 citizens' initiatives. It defined casino gambling by reference to Class III gaming under the federal Indian Gaming Regulatory Act and excluded pari-mutuel wagering on horse racing, dog racing, and jai alai from its scope. It preserved tribal-state compacts and the legislature's authority to restrict, regulate, or tax gambling.

Q: How many signatures had the sponsor gathered when the petition was filed?
A: 73,760 valid petition signatures, according to the Supervisors of Elections as of March 28, 2016. That was more than 10 percent of the total needed (683,149) and at least one-fourth of the congressional districts, which was the threshold that triggers the AG's mandatory referral to the Court. The sponsor still had to gather the remaining roughly 600,000 valid signatures by February 1, 2018, to make the 2018 general election ballot.

Q: Did Florida voters approve the amendment?
A: Yes. The Supreme Court approved the ballot language in 2017, the sponsor reached the signature threshold, and Florida voters adopted the amendment in November 2018 as Amendment 3 with about 71 percent support. It is now Article X, section 30 of the Florida Constitution.

Background and statutory framework

Florida's constitutional initiative process under Article XI, section 3 is unusual in its layered review. After a sponsor registers and gathers an initial 10-percent-and-one-quarter-of-congressional-districts signature threshold, the AG is statutorily obligated to refer the proposal to the Florida Supreme Court for an advisory opinion on single-subject compliance and ballot-language adequacy. The Court's job is not to evaluate the policy merits, but to make sure the proposal does only one thing constitutionally and tells voters honestly what it does. If the Court approves, the sponsor can continue gathering signatures up to the full threshold (8 percent of the votes cast in the last presidential election, with at least 8 percent in each of half the congressional districts). If the Court rejects, the initiative is dead unless the sponsor restructures and starts over.

The AG's role in this scheme is gatekeeper, not opponent. The AG's office is neutral on the merits and procedural in the filing. The Voter Control of Gambling petition was straightforward in this respect: the AG laid out the facts, identified the parties to serve under section 16.061(2), and asked the Court for its advisory opinion. The substantive Court decision came later (215 So. 3d 1209), and the amendment's adoption came two years after that.

The 2018 adoption of Amendment 3 (Article X, section 30) has had cascading effects on Florida gambling regulation. It pre-empts the legislature from authorizing new casino gambling without a fresh citizens' initiative, which has shaped subsequent disputes over tribal-state compacts, slot machine litigation, and the 2021 Seminole Compact.

Citations and references

Statutes:

• § 16.061, Fla. Stat. (AG petition to the Supreme Court on initiative validity)
• § 15.21, Fla. Stat. (Secretary of State role)
• § 100.371, Fla. Stat. (initiative signatures)
• § 101.161(1), Fla. Stat. (ballot title and summary requirements)

Constitutional provisions: Art. IV, § 10, Fla. Const.; Art. XI, § 3, Fla. Const.

Federal reference: Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq.; 25 C.F.R. § 502.4.

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/voter-control-of-gambling
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8062

Original opinion text

The Honorable Jorge Labarga

Chief Justice, and Justices of

The Supreme Court of Florida

The Supreme Court Building

Tallahassee, Florida 32399-1925

Dear Chief Justice Labarga and Justices:

In accordance with the provisions of Article IV, section 10, Florida Constitution, and section 16.061, Florida Statutes, it is my responsibility as Attorney General to petition this Honorable Court for a written opinion as to the validity of an initiative petition circulated pursuant to Article XI, section 3, Florida Constitution.

On April 7, 2016, this office received a letter from the Secretary of State (a copy of which is attached) advising that the initiative petition entitled "Voter Control of Gambling in Florida" had met the registration, submission, and signature criteria set forth in section 15.21, Florida Statutes.

The full text of the proposed amendment, which adds a new section 29 to Article X of the Florida Constitution, states:

"ARTICLE X, FLORIDA CONSTITUTION, is amended to include the following new section:

Voter Control of Gambling in Florida.

(a) This amendment ensures that Florida voters shall have the exclusive right to decide whether to authorize casino gambling in the State of Florida. This amendment requires a vote by citizens' initiative pursuant to Article XI, section 3, in order for casino gambling to be authorized under Florida law. This section amends this Article; and also affects Article XI, by making citizens' initiatives the exclusive method of authorizing casino gambling.

(b) As used in this section, 'casino gambling' means any of the types of games typically found in casinos and that are within the definition of Class III gaming in the Federal Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq. ('IGRA'), and in 25 C.F.R. §502.4, upon adoption of this amendment, and any that are added to such definition of Class III gaming in the future. This includes, but is not limited to, any house banking game, including but not limited to card games such as baccarat, chemin de fer, blackjack (21), and pai gow (if played as house banking games); any player-banked game that simulates a house banking game, such as California black jack; casino games such as roulette, craps, and keno; any slot machines as defined in 15 U.S.C. 1171(a)(1); and any other game not authorized by Article X, section 15, whether or not defined as a slot machine, in which outcomes are determined by random number generator or are similarly assigned randomly, such as instant or historical racing. As used herein, 'casino gambling' includes any electronic gambling devices, simulated gambling devices, video lottery devices, internet sweepstakes devices, and any other form of electronic or electromechanical facsimiles of any game of chance, slot machine, or casino-style game, regardless of how such devices are defined under IGRA. As used herein, 'casino gambling' does not include pari-mutuel wagering on horse racing, dog racing, or jai alai exhibitions. For purposes of this section, 'gambling' and 'gaming' are synonymous.

(c) Nothing herein shall be deemed to limit the right of the Legislature to exercise its authority through general law to restrict, regulate, or tax any gaming or gambling activities. In addition, nothing herein shall be construed to limit the ability of the state or Native American tribes to negotiate gaming compacts pursuant to the Federal Indian Gaming Regulatory Act for the conduct of casino gambling on tribal lands, or to affect any existing gambling on tribal lands pursuant to compacts executed by the state and Native American tribes pursuant to IGRA.

(d) This section is effective upon approval by the voters, is self-executing, and no Legislative implementation is required.

(e) If any part of this section is held invalid for any reason, the remaining portion or portions shall be severed from the invalid portion and given the fullest possible force and effect."

The ballot title for the proposed amendment is: "Voter Control of Gambling in Florida." The ballot summary for the proposed amendment states:

"This amendment ensures that Florida voters shall have the exclusive right to decide whether to authorize casino gambling by requiring that in order for casino gambling to be authorized under Florida law, it must be approved by Florida voters pursuant to Article XI, Section 3 of the Florida Constitution. Affects articles X and XI. Defines casino gambling and clarifies that this amendment does not conflict with federal law regarding state/tribal compacts."

Pursuant to Rule 9.510(b), Florida Rules of Appellate Procedure, this petition provides the following information:

1. The name and address of the sponsor of the initiative petition: Mr. John Sowinski, Chairperson, Voters in Charge, 2640-A Mitcham Drive, Tallahassee, Florida 32308.

2. The name and address of the sponsor's attorney, if the sponsor is represented: Unknown.

3. A statement as to whether the sponsor has obtained the requisite number of signatures to have the initiative placed on the ballot: As of April 5, 2016, the sponsor has not obtained the requisite number of signatures to have the proposed amendment placed on the ballot. A total of 683,149 valid signatures were required for placement on the 2016 general election ballot. The total number of signatures required to have an item placed on the 2018 general election ballot will not be known until after the 2016 general election.

4. The current status of the signature collection process: As of March 28, 2016, the Supervisors of Elections have certified a total of 73,760 valid petition signatures to the Division of Elections for this initiative petition. This number represents more than 10% of the total number of valid signatures needed from electors statewide and in at least one-fourth of the congressional districts in order to have the initiative placed on the 2016 general election ballot.

5. The date of the election during which the sponsor is planning to submit the proposed amendment: The initiative does not specify the date of the election at which the proposed amendment is to be submitted to the voters. The earliest date this proposed amendment can be placed on the ballot is November 6, 2018, provided the sponsor successfully obtains the requisite number of valid signatures by February 1, 2018.

6. The last possible date that the ballot for the target election can be printed in order to be ready for the election: Unknown.

7. A statement identifying the date by which the Financial Impact Statement will be filed, if the Financial Impact Statement is not filed concurrently with the request: The coordinator of the Financial Impact Estimating Conference has advised the Attorney General that the Financial Impact Statement required by section 100.371(5)(a), Florida Statutes, will be filed by no later than May 20, 2016.

8. The names and complete mailing addresses of all of the parties who are to be served: Unknown at the time. Section 16.061(2), Florida Statutes, requires that a copy of the petition be provided to the Secretary of State and to the principal officer of the sponsor:

Mr. Ken Detzner Mr. John Sowinski, Chairperson

Secretary of State Voters in Charge

Florida Department of State 2640-A Mitcham Drive

R.A. Gray Building, Room 316 Tallahassee, Florida 32308

500 South Bronough Street

Tallahassee, Florida 32399-0250

While not required by law, this office provides copies of the petition to:

The Honorable Rick Scott The Honorable Andy Gardiner

Governor, State of Florida President, The Florida Senate

The Capitol Senate Office Building, Room 312

400 South Monroe Street 404 South Monroe Street

Tallahassee, Florida 32399-0001 Tallahassee, Florida 32399-1100

The Honorable Steve Crisafulli

Speaker, Florida House of Representatives

The Capitol, Room 420

402 South Monroe Street

Tallahassee, Florida 32399-1300

In accordance with the provisions of Article IV, section 10, Florida Constitution, I respectfully request this Honorable Court's opinion as to whether the proposed amendment "Voter Control of Gambling in Florida" complies with the single-subject requirement of Article XI, section 3, Florida Constitution, and whether the ballot title and summary of the amendment complies with the substantive and technical requirements in section 101.161(1), Florida Statutes.

Respectfully submitted,

Pamela Jo Bondi

Attorney General