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Supreme Court of Florida

January 16, 2020

ADVISORY OPINION TO THE GOVERNOR RE: IMPLEMENTATION OF AMENDMENT 4, THE VOTING RESTORATION AMENDMENT.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

          Original Proceedings - Advisory Opinion to the Governor

          Joseph W. Jacquot, General Counsel, Nicholas A. Primrose, John MacIver, Colleen Ernst, and James Uthmeier, Deputy General Counsel, Joshua E. Pratt, Assistant General Counsel, Executive Office of the Governor, Tallahassee, Florida, for The Honorable Ron DeSantis, Governor of Florida

          Theodore Leopold, Diana L. Martin, and Poorad Razavi of Cohen Milstein Sellers & Toll, PLLC, Palm Beach Gardens, Florida; and Cecilia Aguilera and Jon Sherman, Fair Elections Center, Washington, District of Columbia, for Interested Party, Fair Elections Center

          Jimmy Midyette, Jacksonville, Florida, Julie A. Ebenstein, Rodkangyil Orion Danjuma, and Jonathan S. Topaz, New York, New York, Daniel B. Tilley, and Anton Marino, American Civil Liberties Union Foundation of Florida, Inc., Miami, Florida; Leah C. Aden and John S. Cusick, NAACP Legal Defense & Educational Fund, Inc., New York, New York; and Sean Morales-Doyle and Eliza Sweren-Becker of Brennan Center for Justice at NYU School of Law, New York, New York, for Interested Parties, Orange County Florida Branch of the NAACP, the NAACP Legal Defense and Educational Fund, the American Civil Liberties Union Foundation of Florida, the American Civil Liberties Union, The Brennan Center for Justice at New York University Law School, the Florida Conference of the NAACP, and League of Women Voters of Florida

          Mark R. Schlakman of Florida State University Center for the Advancement of Human Rights, Tallahassee, Florida, for Interested Party, Florida Association of Criminal Defense Lawyers (FACDL)

          Daniel Bell, General Counsel, J. Michael Maida, Deputy General Counsel, and W. Jordan Jones, Staff Attorney, House Judiciary Committee, Tallahassee, Florida; and Jonathan L. Williams of Lash & Goldberg LLP, Miami, Florida, for Interested Party, Florida House of Representatives

          Adam Richardson, pro se, West Palm Beach, Florida, Interested party

          Jeremiah Hawkes, General Counsel, and Ashley Istler, Deputy General Counsel, The Florida Senate, Tallahassee, Florida for Interested Parties, The Florida Senate and Bill Galvano, in his official capacity as President of The Florida Senate

          Jennifer LaVia and Carla Laroche, pro se, Tallahassee, Florida, Interested parties

          Chad W. Dunn of Brazil & Dunn, L.L.P., Miami, Florida; and Danielle Lang, Molly E. Danahy, and Mark P. Gaber of Campaign Legal Center, Washington, District of Columbia for Interested Parties, Bonnie Raysor, Diane Sherrill, and Lee Hoffman

          Bradley R. McVay, General Counsel, Ashley E. Davis, Deputy General Counsel, Florida Department of State, Tallahassee, Florida; Mohammad O. Jazil and Gary V. Perko of Hopping Green & Sams, P.A., Tallahassee, Florida; and George N. Meros, Jr., and Tara R. Price of Holland & Knight LLP, Tallahassee, Florida, for Interested Party, the Florida Secretary of State, Laurel M. Lee

          PER CURIAM.

         By letter dated August 9, 2019, Governor Ron DeSantis requested the opinion of the justices of this Court as to the interpretation of a portion of the Florida Constitution upon a question affecting his executive powers and duties. We have jurisdiction. See art. IV, § 1(c), Fla. Const.

         Specifically, the Governor requests advice regarding the meaning of certain language that was added to article VI, section 4 of the Florida Constitution by the approval on November 6, 2018, of an initiative petition-commonly referred to as "Amendment 4"-that restores the voting rights of certain convicted felons "upon completion of all terms of sentence including parole or probation." Art. VI, § 4(a), Fla. Const. The Governor asks whether the phrase "all terms of sentence" encompasses legal financial obligations (LFOs)-fines, restitution, costs, and fees-ordered by the sentencing court. We answer in the affirmative, concluding that "all terms of sentence" encompasses not just durational periods but also all LFOs imposed in conjunction with an adjudication of guilt.

The Governor's letter in relevant part states:
I request your interpretation of whether "completion of all terms of sentence" encompasses financial obligations, such as fines, fees and restitution ("legal financial obligations" or "LFOs") imposed by the court in the sentencing order.
Prior to Amendment 4's placement on the ballot, this Court was asked to determine whether the amendment met the legal requirements under Florida's Constitution. On March 6, 2017, during a colloquy between the justices and Amendment 4's sponsor, Floridians for a Fair Democracy ("Sponsor"), this Court was assured the Amendment presented a "fair question" and "clear explanation" to voters. Transcript of Oral Argument at 2, Advisory Op. to the Attorney General Re: Voting Restoration Amend., 215 So.3d 1202 (Fla. 2017) (Nos. SC16-1785 and SC16-1981). Addressing a question posed by Justice Polston as to whether "completion of [all] terms" included "full payment of any fines," the Sponsor responded, "Yes, sir . . . All terms means all terms within the four corners." Id. at 4. Justice Lawson similarly asked, "You said that terms of sentence includes fines and costs . . . that's the way it's generally pronounced in criminal court, would it also include restitution when it was ordered to the victim as part of the sentence?" Id. at 10. The Sponsor answered, "Yes." Id. Justice Pariente posited the inclusion of fees, fines, and restitution as part of the completion of sentence "would actually help the state because if fines, costs and restitution are a requirement . . . for those that want to vote, there's a big motivation to pay unpaid costs, fines and restitution." Id. at 11. Ultimately, the Court found Amendment 4 clearly and unambiguously informed voters the chief purpose of the proposed amendment was to "automatically restore voting rights to felony offenders, except those convicted of murder or felony sexual offenses, upon completion of all terms of their sentence." Advisory Op., 215 So.3d at 1208 (emphasis added).
In alignment with the colloquy with the Florida Supreme Court, after Amendment 4 was approved by voters, the ACLU of Florida, League of Women Voters of Florida, LatinoJustice, and the Florida Rights Restoration Coalition delivered a letter to former Secretary of State Ken Detzner regarding implementation of Amendment 4. Exhibit 1, December 13, 2018 Letter. In part, the letter explained,
The phrase "completion of all terms of sentence" includes any period of incarceration, probation, parole and financial obligations imposed as part of an individual's sentence. The financial obligations may include restitution and fines, imposed as part of a sentence or a condition of probation under existing Florida statute. Fees not specifically identified as part of a sentence or a condition of probation are therefore not necessary for 'completion of sentence' and thus, do not need to be paid before an individual may register. We urge the Department to take this view in reviewing eligibility of individuals registered to vote as outlined in Chapter 98, Florida Statutes.
Ex. 1, p. 3 (emphasis added).
During the 2019 Legislative Session, legislators in both chambers debated legislative implementation of Amendment 4. Ultimately, both chambers passed CS/SB 7066 and, on June 28, 2019, I signed it into law. See Ch. 2019-162, Laws of Fla. In relevant part, chapter 2019-162, section 25, Laws of Florida, creating section 98.0751, Florida Statutes, provided guidance on restoration of voting rights and determination of ineligibility pursuant to the amendment of Article VI, section 4 of the Florida Constitution. Section 98.0751, Florida Statutes, defines "[c]ompletion of all terms of sentence" as "any portion of a sentence that is contained in the four corners of the sentencing document." § 98.0751(2)(a), Fla. Stat. (2019). The Legislature provided five categories of terms included in the sentencing document: . . . (5) full payment of LFOs ordered by the court as part of the sentence. See § 98.0751(2)(a)l.-5., Fla. Stat. (2019).
On June 15, 2019, Luis Mendez filed a complaint in the Northern District of Florida seeking injunctive and declaratory relief and mandamus challenging chapter 2019-162, Laws of Florida. In part, Mendez alleges chapter 2019-162, Laws of Florida, violates Article VI, section 4 of the Florida Constitution because it adds requirements for the restoration of voting rights above what was prescribed in the Florida Constitution. Additional complaints were filed by numerous plaintiffs, including organizations referenced above, alleging provisions of chapter 2019-162, Laws of Florida violate the First, Eighth, Fourteenth and Twenty-Fourth Amendments of the United States Constitution. These challenges are only directed at chapter 2019-162, Laws of Florida, and do not question the constitutionality of Article VI, section 4 of the Florida Constitution.
Article IV, section 1(a) of the Florida Constitution prescribes the supreme executive power shall be vested in the Governor, that he "shall take care that the laws be faithfully executed" and "transact all necessary business with the officers of government." Article IV, section 6 of the Florida Constitution places direct administration and supervision of all functions of the executive branch, including the Department of State, under the constitutional authority of the Governor. See also § 20.02(3), Fla. Stat. (the administration of any executive branch entity shall at all times be ["]under the constitutional executive authority of the Governor"); § 20.10, Fla. Stat. (creating the Department of State, headed by the Secretary of State who is appointed by the Governor). Furthermore, the Secretary of State is the chief elections officer with the responsibility to maintain uniformity in the interpretation and implementation of voter registration and election laws. See § 97.012, Fla. Stat.
I, as Governor of Florida, . . . want to ensure the proper implementation of Article VI, section 4 of the Florida Constitution and, if applicable, chapter 2019-162, Laws of Florida. This includes the ability to direct the Department of State to fully implement Article VI, section 4 of the Florida Constitution by determining whether a convicted felon has completed all terms of their sentence, including the satisfaction of LFOs. I will not infringe on the proper restoration of an individual's right to vote under the Florida Constitution.
Understanding there is ongoing litigation in federal court challenging chapter 2019-162, Laws of Florida under the First, Eighth, Fourteenth and Twenty-Fourth Amendments of the United States Constitution, I do not ask this Court to address any issues regarding chapter 2019-162, Laws of Florida or the United States Constitution.
Therefore, I respectfully request an opinion of the Justices of the Supreme Court of Florida as to the question of whether "completion of all terms of sentence" under Article VI, section 4 of the Florida Constitution includes the satisfaction of all legal financial obligations-namely fees, fines and restitution ordered by the court as part of a felony sentence that would otherwise render a convicted felon ineligible to vote.

         Letter from Governor Ron DeSantis to Chief Justice Charles T. Canady dated August 9, 2019, at 1-4 (some alterations in original) (footnote omitted).

         After concluding that the Governor's request was within the purview of article IV, section 1(c) of the Florida Constitution, we agreed to exercise our discretion to provide an advisory opinion. We also permitted interested parties to file briefs and to present oral argument before the Court. See art. IV, § 1(c), Fla. Const.[1] During oral argument, counsel for the Governor made clear that the Governor requests advice solely as to the narrow question of whether the phrase "all terms of sentence" includes LFOs ordered by the sentencing court. We answer only that question.

         The arguments presented by the interested parties generally fall into one of two categories. On the one hand, the Governor, the Florida Senate, the Florida House of Representatives, and the Secretary of State (collectively, the State Parties) all argue that "all terms of sentence" includes all LFOs ordered by the sentencing judge. They largely rely on plain language, case law, and the common understanding of penalties imposed for criminal acts. On the other hand, the remaining interested parties (collectively, the Non-State Parties) present varying arguments against some or all LFOs being included within the scope of "all terms of sentence." Some Non-State Parties argue that "all terms of sentence" refers to durational periods rather than to obligations and thus contemplates only periods of imprisonment and supervised release. Others assume that "all terms of sentence" refers to obligations including some LFOs, but they argue for the exclusion of certain LFOs. These latter Non-State Parties focus on what they label as punitive aspects of a sentence and on what they consider to be the technical components of a criminal sentence.

         The answer to the Governor's question largely turns on whether "all terms of sentence" encompasses all obligations or only durational periods. We conclude that the phrase, when read and understood in context, plainly refers to obligations and includes "all"-not some-LFOs imposed in conjunction with an adjudication of guilt. Before explaining our opinion, we briefly address our jurisdiction as well as the Secretary of State's concerns that the events leading up to the adoption of Amendment 4 and the subsequent ...


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