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Jones v. DeSantis

United States District Court, N.D. Florida, Tallahassee Division

October 18, 2019

KELVIN LEON JONES et al., Plaintiffs,
RON DeSANTIS et al., Defendants.


          Robert L. Hinkle United States District Judge.

         These consolidated cases arise from a voter-initiated amendment to the Florida Constitution that automatically restores the right of most felons to vote, but only “upon completion of all terms of sentence including parole or probation.” The Florida Supreme Court will soon decide whether “all terms of sentence” means not only terms of imprisonment and supervision but also fines, restitution, and other financial obligations imposed as part of a sentence. The Florida Legislature has enacted a statute that says the phrase does include these financial obligations.

         The principal issue in these federal cases is whether the United States Constitution prohibits a state from requiring payment of financial obligations as a condition of restoring a felon's right to vote, even when the felon is unable to pay. A secondary issue is whether the state's implementation of this system has been so flawed that it violates the Constitution.

         I. Background: the Cases and the Pending Motions

         The constitutional amendment at issue is popularly known as “Amendment 4” based on its placement on the November 2018 ballot. The amendment has given rise to state-law issues of interpretation and implementation and also to substantial federal constitutional issues. The statute that purports to interpret and implement Amendment 4 is often referred to as SB7066.

         The plaintiffs in these five consolidated federal actions are 17 individuals and three organizations. The individuals have been convicted of felonies, have completed their terms of imprisonment and supervision, and would be entitled to vote based on Amendment 4 and SB7066 but for one thing: they have not paid financial obligations imposed when they were sentenced. All but two of the individual plaintiffs have sworn that they are unable to pay the financial obligations; the other two have alleged, but not sworn, that they are unable to pay.[1]The organizational plaintiffs are the Florida State Conference of the NAACP, the Orange County Branch of the NAACP, and the League of Women Voters of Florida. They have associational standing to represent individuals whose eligibility to vote is affected by Amendment 4 and SB7066.

         The plaintiffs assert that conditioning the restoration of a felon's right to vote on the payment of financial obligations violates the United States Constitution, both generally and in any event when the felon is unable to pay. The plaintiffs rely on the First Amendment, the Fourteenth Amendment's Equal Protection and Due Process Clauses, and the Twenty-Fourth Amendment, which says the right to vote in a federal election cannot be denied by reason of failure to pay “any poll tax or other tax.” The plaintiffs also allege that the state's implementation of this system for restoring the right to vote has been so flawed that this, too, violates the Due Process Clause. The plaintiffs seek declaratory and injunctive relief.

         The defendants, all in their official capacities, are the Secretary of State and Governor of Florida, the Supervisors of Elections of the counties where all but two of the individual plaintiffs reside, and the Supervisor of Elections of Orange County, where no individual plaintiff resides but one of the organizational plaintiffs is based. The counties where an individual plaintiff resides but the Supervisor is not a defendant are Broward and Pinellas.

         The officials who are primarily responsible for administering the state's election system and registering voters are the Secretary at the state level and the Supervisors of Elections at the county level. They are proper defendants in an action of this kind. See Ex parte Young, 209 U.S. 123 (1908).

         The Secretary and Governor are the defendants who speak for the state in this litigation. They have consistently taken the same positions. For convenience, and because the Secretary, not the Governor, has primary responsibility for elections and voting, this order usually refers to the Secretary as shorthand for both of these defendants, without also mentioning the Governor.

         The Secretary has moved to dismiss or abstain. The plaintiffs have moved for a preliminary injunction. The motions have been fully briefed and orally argued. The record consists of live testimony given at an evidentiary hearing as well as deposition testimony, declarations, and a substantial number of exhibits.

         II. Background: Felon Disenfranchisement, Amendment 4, and SB7066

         Florida has disenfranchised felons going back to at least 1845. Its authority to do so is beyond question. In Richardson v. Ramirez, 418 U.S. 24 (1974), the Supreme Court read an apportionment provision in section 2 of the Fourteenth Amendment as authority for states to disenfranchise felons. As Justice O'Connor, speaking for the Ninth Circuit, later said, “it is not obvious” how the section 2 apportionment provision leads to this result. Harvey v. Brewer, 605 F.3d 1067, 1072 (9th Cir. 2010). But one way or the other, Richardson is the law of the land.

         Recognizing this, in Johnson v. Governor of Florida, 405 F.3d 1214 (11th Cir. 2005) (en banc), the court explicitly upheld Florida's then-existing disenfranchisement provisions. The bottom line: Florida's longstanding practice of denying an otherwise-qualified citizen the right to vote on the ground that the citizen has been convicted of a felony is not, without more, unconstitutional.

         Florida has long had an Executive Clemency Board with authority to restore an individual's right to vote. The Board has operated without articulated standards, see Hand v. Scott, 285 F.Supp.3d 1289, 1293-94, 1306-08 (N.D. Fla. 2018), and, as shown by the testimony in this record, has moved at glacial speed. See, e.g., Hr'g Tr., ECF No. 204 at 170-71. The issue in Hand, which is now on appeal, was whether the Executive Clemency Board was operating in an unconstitutional manner. Both sides have told the Eleventh Circuit that Amendment 4 has rendered Hand moot because all the plaintiffs in that case are now eligible to vote.

         Florida's Constitution allows voter-initiated amendments. To pass, a proposed amendment must garner 60% of the vote in a statewide election. Fla. Const. art XI, § 5(e). Amendment 4, which passed with 64.55% of the vote, added a provision automatically restoring the voting rights of some-not all-felons. The new provision became effective on January 8, 2019 and was codified as part of Florida Constitution article VI, section 4. SB7066 purports to implement the Amendment.

         The full text of section 4, with the new language underlined, follows:

(a) No person convicted of a felony, or adjudicated in this or any other state to be mentally incompetent, shall be qualified to vote or hold office until restoration of civil rights or removal of disability. Except as provided in subsection (b) of this section, any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation.
(b) No person convicted of murder or a felony sexual offense shall be qualified to vote until restoration of civil rights.

Fla. Const. art. VI, § 4 (emphasis added). The exclusion of felons convicted of murder or sexual offenses is not at issue in these cases, and references in this order to “felons” should be read to mean felons convicted only of other offenses, when the context makes this appropriate.

         SB7066 includes a variety of provisions. Two are the most important for purposes of this litigation. First, SB7066 explicitly provides that “all terms of sentence” within the meaning of Amendment 4 includes financial obligations imposed as part of the sentence-that is, “contained in the four corners of the sentencing document.” Fla. Stat. § 98.0751(2)(a). Second, SB7066 explicitly provides that this also includes financial obligations that the sentencing court converts to a civil lien. Id. Conversion to a civil lien, usually at the time of sentencing, is a longstanding Florida procedure that courts often use for obligations a criminal defendant cannot afford to pay. See Fla. Stat. § 938.30(6)-(9); Hr'g Tr., ECF No. 204 at 94; Timmann Dep., ECF No. 194-1 at 31; Haughwout Decl., ECF No. 167-103 at 5-6; ECF No. 167-20 at 48.

         III. The Motion to Dismiss: Redressability

         The Secretary's motion to dismiss asserts that the plaintiffs lack standing. This is so, the Secretary says, because the plaintiffs' claims are not redressable in this action. The Secretary's theory is this: the plaintiffs explicitly challenge only SB7066, not Amendment 4, but if Amendment 4 is construed to require payment of financial obligations-an issue for the Florida Supreme Court, not this court- the plaintiffs will still be unable to vote, and no declaration or injunction could be entered in this action that would change this. The Secretary is of course correct that a plaintiff cannot pursue a claim in federal court that even if successful would make no difference. See, e.g., Fla. Family Policy Council v. Freeman, 561 F.3d 1246 (11th Cir. 2009).

         The flaw in the Secretary's position is that she reads the plaintiffs' claims too narrowly. The individual plaintiffs assert, among other things, that the State cannot preclude them from voting just because they lack the financial resources to pay financial obligations. And the plaintiffs assert the State's process for restoring the right to vote is so flawed that it violates the Due Process Clause. The organizational plaintiffs make the same claims on behalf of felons whose rights they assert. If the plaintiffs are correct, the constitutional violations can be remedied through an appropriate injunction. Indeed, this order issues an injunction, though not one as broad as the plaintiffs request. That the plaintiffs do not assert Amendment 4 is itself unconstitutional on its face does not change this.

         IV. Abstention

         As an original matter, one could reasonably argue both sides of the question whether “all terms of sentence including parole or probation” includes fines, restitution, and other financial obligations imposed at the time of sentencing. This is an issue of Florida, not federal, law. And it is a question of Florida constitutional law. The Legislature's view, as set out in SB7066, is not controlling.

         At least as against the Secretary of State and Governor, if not also the Supervisors of Elections, this court's jurisdiction to resolve the issue is subject to doubt. See, e.g., Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121 (1984) (holding that the Eleventh Amendment bars any claim for injunctive relief based on state law against a state or against a state officer); but see Harvey, 605 F.3d at 1080-81 (resolving state-law felon-disenfranchisement issues on the merits). In any event, any resolution of this issue in these consolidated federal cases would be short-lived; the Florida Supreme Court, whose view on this will be controlling, has oral argument on this very issue scheduled just three weeks hence. See ECF No. 148-14 at 2.

         The Secretary says the proper manner of dealing with this uncertainty in these federal cases is to abstain. The Secretary first invokes Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941), under which a federal court abstains from deciding a federal constitutional question when there exists an unclear issue of state law whose resolution might moot the federal constitutional question or present it in a substantially different light.

         But for two circumstances, the Secretary would be correct. Indeed, but for the two circumstances, this is the very paradigm of a proper case for Pullman abstention. A decision by the Florida Supreme Court that Amendment 4 does not require payment of financial obligations as a condition of restoring voting rights would moot the constitutional questions presented in this case.

         The first of the two countervailing circumstances is that this is a voting-rights case and elections are upcoming; delay would decrease the chance that this case can be properly resolved both in this court and on appeal in time for eligible voters-and only eligible voters-to be able to vote. There are local elections on November 5, almost surely before the Florida Supreme Court will rule, and a presidential primary in March, already leaving little time for a preliminary-injunction ruling in this court and appellate review before the voting begins.[2]

         The Supreme Court has squarely held that a district court does not abuse its discretion by declining to abstain under Pullman in circumstances like these. See Harman v. Forssenius, 380 U.S. 528, 537 (1965) (“Given the importance and immediacy of the problem [the right to vote], and the delay inherent in referring questions of state law to state tribunals, it is evident that the District Court did not abuse its discretion in refusing to abstain.”) (footnote omitted). The Eleventh Circuit en banc has reached the same conclusion. See Siegel v. LePore, 234 F.3d 1163, 1174 (11th Cir. 2000) (en banc) (“[V]oting rights cases are particularly inappropriate for abstention.”).

         The Secretary says these decisions apply only in voting-rights cases and do not apply here because the plaintiffs are felons who have no right to vote-that this case involves only restoration of the right to vote, not an already-existing right to vote. But voting is no less important to these plaintiffs than to others, and a ruling on the plaintiffs' constitutional rights is no less urgent than it would be for individuals who have never been convicted. Moreover, the Secretary's proposed distinction assumes she is right on the merits-that, as she contends on the merits, the plaintiffs still have no right to vote. A court does not properly decide to abstain by first accepting a defendant's position on the merits.

         The second circumstance that makes abstention inappropriate here is that the Florida Supreme Court's ruling on the most important part of the unclear issue of state law can be predicted with substantial confidence. This is addressed in the next section of this order.

         The Secretary also invokes other abstention doctrines, but they are inapplicable based on these same two circumstances and for additional reasons. A preliminary injunction of proper scope will not interfere with a complex state regulatory scheme of the kind that sometimes makes abstention proper under Burford v. Sun Oil Co., 319 U.S. 315 (1943). The proceeding that is pending in the Florida Supreme Court was initiated by the Governor's request for an advisory opinion on state-law issues, but the Governor explicitly asked the court not to address the federal constitutional issues pending in this court. See ECF No. 148-13 at 4-5. Because no proceeding is pending in state court that will address the constitutional issues in these consolidated cases, and for other reasons as well, abstention is not warranted under Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976). Finally, this case does not involve eminent domain, as did Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25 (1959), nor any similar prerogative of the sovereign.

         For all these reasons, this order denies the Secretary's motion to abstain.

         V. Does Amendment 4 Require Payment of Financial Obligations?

         The Florida Supreme Court has said that construction of a voter-initiated constitutional amendment properly begins with the provision's text and takes into account the intent of both the framers and the voters. See Zingale v. Powell, 885 So.2d 277, 282 (Fla. 2004). A court properly follows “principles parallel to those of statutory interpretation.” Id.

         Amendment 4 automatically restores voting rights “upon completion of all terms of sentence including parole or probation.” As the Secretary emphatically notes, “all” means “all.” But the question is not whether “all” means “all”; it obviously does. The question is all of what. This order divides the discussion of this issue into four parts: (a) fines and restitution; (b) other financial obligations imposed at the time of sentencing; (c) amounts converted to civil liens; and (d) the bottom-line treatment of these issues for purposes of this order.

         A. Fines and Restitution Fines and restitution imposed at the time of sentencing-announced in open court or included in the sentencing document-are part of the sentence. On one reading, provisions that are part of a sentence are “terms” of the sentence.

         This is consistent with one dictionary definition, under which “terms” are “provisions that determine the nature and scope of an agreement.” “Term, ” Merriam-Webster's Online Dictionary 2019, available at[3] A sentence is not an agreement, but close enough. Other dictionaries probably articulate the same concept in ways more clearly applicable to a sentence. It is no stretch to suggest that the “terms” of a sentence are everything in the sentence, including fines and restitution.

         On the other side, it is at least curious that Amendment 4 says “including parole or probation” but not “including fines and restitution.” At least literally, “including” means “including but not limited to.” See “Include, ” Black's Law Dictionary (11th ed. 2019). The word is usually, but not always, construed this way. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 132-33 (2012). Under the negative-implication canon of construction, listing one thing but not others sometimes suggests the others are not included. See id. at 107-11. There is even a Latin phrase for this, confirming it must be true, at least sometimes: “expressio unius est exclusio alterius.” See Id. at 107-11, 428.

         In any event, another dictionary definition of “term” is “a limited or definite extent of time.” “Term, ” Merriam-Webster's Online Dictionary 2019, available at A period of imprisonment is a “term, ” as is a period on parole or probation. But this meaning of “term” has no application to financial obligations imposed as part of a sentence. So “all terms of sentence including probation or parole” could mean only all “terms”-periods of time-in prison or under supervision. Not financial obligations.

         This reading also fits more comfortably with Amendment 4's reference to “completion” of the terms of sentence. It is commonplace to say a prison term has been completed. So also a term of supervision. A fine or restitution, in contrast, may be paid, and one could say, rather inartfully, that a payment has been completed. But without a reference to payment, it is at least somewhat awkward to say a fine or other financial obligation has been “completed.” Nobody would say, “I completed my student loan” or “completed my car loan” or “completed my credit-card account.”

         In sum, Amendment 4's language, standing alone, could be read to include, or not to include, fines and restitution. This brings us to considerations beyond just the amendment's language.

         Under Florida law, a voter-initiated constitutional amendment may go on the ballot only if its language and its ballot summary are approved in advance by the Florida Supreme Court. See Fla. Const. art. IV § 10; see Id. art. X, § 3(b)(10). When the proponents of Amendment 4 sought the Florida Supreme Court's approval to place the amendment on the ballot, the issues of fines and restitution were explicitly addressed.

         The only speaker at the oral argument in the Florida Supreme Court was the proponents'-that is, the framers'-attorney. He said the critical language “all terms of sentence” means “anything that a judge puts into a sentence.” ECF No. 148-1 at 9. A justice asked, “So it would include the full payment of any fines”? Id. The attorney responded, “Yes, sir.” Id. Another justice asked, “Would it also include restitution when it was ordered to the victim . . . as part of the sentence?” Id. at 17-18. The attorney answered, “Yes.” Id. Yet another justice suggested this might “actually help the State” by providing an incentive for payment. Id. at 19.

         The intended meaning of Amendment 4 cannot be determined based only on what the proponents' attorney said at oral argument or what three justices thought at that time. A critical question-even more important-is what a reasonable voter would have understood the amendment's language to mean. But the Florida Supreme Court has said that in construing amendments, the framers' views are relevant. Zingale, 885 So.2d at 282-83; see also Gray v. Bryant, 125 So.2d 846, 851 (Fla. 1960). The court will surely take into account the proponents' assertions at oral argument. The proponents of an amendment ought not be able to tell the Florida Supreme Court that the amendment means one thing but later, after adoption, assert the amendment means something else.

         In any event, voters might well have understood the amendment to require felons to meet all components of their sentence-whatever they might be-before automatically becoming eligible to vote. The plaintiffs say the voters' intent was to restore the right of felons to vote and that all doubts should be resolved accordingly-that is, in favor of otherwise-disenfranchised felons. But that goes too far. The theory of most voters might well have been that felons should be allowed to vote only when their punishment was complete-when they “paid their debt to society.”

         If, based on this theory, a felon must serve a prison sentence or finish a term of supervision as a condition of voting, it is difficult to argue that a felon who is able to pay a fine should not be required to do so, also as a condition of voting. Fines are imposed as punishment, sometimes instead of, sometimes in addition to, imprisonment. Inability to pay raises different issues, not only of policy but of constitutional law, but those are issues bearing only a little, if at all, on the proper interpretation of “all terms of sentence.” If that phrase is read to exclude fines, it will mean that a felon who is able to pay a fine but chooses not to do so will nonetheless automatically become eligible to vote. There is no evidence that this is what Florida voters intended.

         The analysis of voters' intent for restitution is similar, though on at least one view, restitution is imposed not so much as punishment as to provide just compensation to a victim. If voters intended “all terms of sentence” to mean punishment, restitution is not as clearly covered as fines. But voters might still have deemed restitution part of a felon's “debt to society.” In arguing that payment of financial obligations is not required, the plaintiffs note the widely publicized assertion that if adopted, Amendment 4 would immediately make roughly 1.4 million felons eligible to vote. Indeed, the state officials responsible for estimating in advance the likely financial impact of Amendment 4 used a similar figure, and the proponents' attorney referred to it during oral argument in the Florida Supreme Court. Citing the financial-impact analysis, the attorney said the experience in other states has been that the registration rate for felons who become eligible to vote is roughly 20% and that, for Amendment 4, this would mean about 270, 000 people.[4] Curiously, the attorney said this would put the total number of eligible felons at 700, 000, but better arithmetic-270, 000 divided by .20-would put the eligible number at 1, 350, 000, in line with the widely publicized figure of roughly 1.4 million.

         As it turns out, many of Florida's otherwise-eligible felons have unpaid fines and restitution and many more owe fees of various kinds that are addressed in the next subsection of this order. The record does not show the percentage of otherwise-eligible felons who have unpaid fines and restitution, but the record shows that roughly 80% of otherwise-eligible felons have unpaid fines, restitution, or other financial obligations imposed at the time of sentencing. See Smith Report, ECF No. 153-1 at 4; see also Hr'g Tr., ECF No. 204 at 49. If payment of all these obligations is a prerequisite to eligibility, the estimate of the number of felons who would become eligible under Amendment 4 was wildly inaccurate.

         Even so, this provides only slight support for the plaintiffs' assertion that Amendment 4 was not intended to require payment of these obligations. Recall that a critical question is the understanding of the voters who adopted the amendment. Surely many of those voters, probably most, were unaware of the 1.4 million estimate. And even voters who were aware of the 1.4 million estimate usually had no reason to know how it was calculated-no reason to believe the estimate included felons with unpaid financial obligations. More important than the estimated number of affected felons was the assertion, readily derived from the text of the amendment, that felons would become eligible only after completing “all terms of sentence.” The estimated raw number says little if anything about what the voters understood this language to mean.

         Indeed, the estimate does not even show what those who came up with the estimate or embraced it understood the amendment to mean. The state's financial analysts may have lacked familiarity with the state's criminal-justice system and may have failed even to spot the issue. Those who embraced the estimate likely had no idea how many felons would be affected by a requirement to pay fines and restitution, let alone by a requirement to pay other financial obligations. The plaintiffs have tendered no evidence that anyone who made or embraced the estimate actually considered this issue, knew that a substantial number of Florida sentences include fines and restitution, knew that all Florida sentences include other financial obligations, or knew that most felons who have finished their time in prison and under supervision have not paid all these financial obligations. The erroneous estimate of the effect of the amendment, even if widely accepted, does not show that most voters thought the right to vote would be restored to those whose sentences included unpaid fines or restitution.

         B. Other Financial Obligations

         Quite apart from a sentencing judge's decision about the proper punishment for a given felony-punishment that may include a fine-Florida law requires the judge to impose fees whose primary purpose is to raise revenue, sometimes for a specific purpose. The fees often bear no apparent relationship to culpability. The fees for a violent felony that produces substantial bodily injuries may be the same as the fees for a comparatively minor, nonviolent felony, including, for example, shoplifting items of sufficient value.[5]

         The fees are ordinarily the same for a defendant who is convicted by a jury or pleads guilty, on the one hand, as for a defendant who denies guilt and pleads no contest, on the other hand.[6] The fees are ordinarily the same whether a defendant is adjudicated guilty or adjudication is withheld.[7]

         The fees include $50 for applying for representation by a public defender;[8]$100 for actual representation by a public defender;[9] at least $100 for the state attorney's “costs” (though these are not court costs of the kind ordinarily taxed in favor of a prevailing party in litigation);[10] $225 as “additional court costs” (though again unrelated to court costs of the traditional kind), of which $25 is remitted to the Department of Revenue for ...

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