Floridians Protecting Freedom, Inc. v. Kathleen C. Passidomo

• Court: Supreme Court of Florida
• Decided: August 21, 2024
• Docket: SC2024-1098
• Status: Published

Opinion

Supreme Court of Florida ____________

No. SC2024-1098 ____________

FLORIDIANS PROTECTING FREEDOM, INC., et al., Petitioners,

vs.

KATHLEEN C. PASSIDOMO, et al., Respondents.

August 21, 2024

MUÑIZ, C.J.

Before the Court is a petition for a writ of quo warranto. The

petition challenges the authority of the Financial Impact Estimating

Conference, acting on its own initiative, to issue a revised financial

impact statement for a proposed constitutional amendment titled

“Amendment to Limit Government Interference with Abortion,”

which will appear on our state’s November 2024 ballot. The

petitioners are Floridians Protecting Freedom (the amendment

sponsor) and Sara Latshaw (a Florida citizen and taxpayer and the

amendment sponsor’s chairperson). The respondents are the Financial Impact Estimating Conference and its four principals,

along with the President of the Florida Senate and the Speaker of

the Florida House of Representatives, all of whom are named in

their official capacities. Although the petitioners criticize the

content of the revised financial impact statement, both sides in this

case acknowledge that the revised statement’s substantive legality

is not before the Court; the petition challenges the Estimating

Conference’s authority to issue that statement.

As we explain, applying traditional principles that govern the

issuance of extraordinary writs, we deny the petition. The

petitioners actively participated in the Estimating Conference

process that they now challenge, without questioning or objecting to

the Conference’s authority to issue a revised financial impact

statement on its own initiative. For that basic reason, the

petitioners waived or forfeited any reasonable claim to extraordinary

relief from this Court.

I

A

Article XI, section 5(c) of the Florida Constitution requires the

Legislature to provide by general law “for the provision of a

-2- statement to the public regarding the probable financial impact of

any amendment proposed by initiative.” To implement that

command, the Legislature has mandated that the ballot for any

such proposal include “[a] separate financial impact statement

concerning the measure prepared by the Financial Impact

Estimating Conference in accordance with s. 100.371(13).”

§ 101.161(1)(a), Fla. Stat. (2023).1 The Estimating Conference itself

consists of four principals: one person from the Executive Office of

the Governor; the coordinator of the Office of Economic and

Demographic Research; and one professional staff member from

each chamber of the Legislature. § 100.371(13)(c)1., Fla. Stat.

The financial impact statement process begins when the

Estimating Conference receives notice of a potential amendment

from the Secretary of State. § 100.371(13)(a), Fla. Stat. That starts

the clock on a 75-day deadline—subject to tolling while the

Legislature is in session—for the Estimating Conference to create

the financial impact statement. In no more than 150 words of

“clear and unambiguous” text, the statement must disclose “the

1. In this opinion, all statutory references are to the 2023 Florida Statutes.

-3- estimated increase or decrease in any revenues or costs to state or

local governments and the overall impact to the state budget

resulting from the proposed initiative.” § 100.371(13), Fla. Stat.

Once the Estimating Conference has completed its work, it must

“immediately submit the statement to the Attorney General.”

§ 100.371(13)(c)2., Fla. Stat.

The statute that governs the financial impact statement

process assumes that our Court will review the legality of the

statement by advisory opinion. § 100.371(13)(e), Fla. Stat. But, in

Advisory Opinion to the Attorney General re Raising Florida’s

Minimum Wage, 285 So. 3d 1273, 1281 (Fla. 2019), we held that

our Court lacks original jurisdiction to review financial impact

statements. In so holding, we noted that “[i]t is not clear” whether

“the Legislature contemplated that this Court’s review authority

[would] be exclusive.” Id. at 1279 n.2 (citing § 100.371(13)(c)2., Fla.

Stat.). Yet we “express[ed] no definite opinion” on whether a

challenge to a financial impact statement could be brought in a trial

court declaratory judgment action. Id. at 1279 n.4. To date the

Legislature has not amended section 100.371(13) to account for our

decision in Minimum Wage.

-4- The financial impact statement statute says that, upon finding

that a statement is invalid, this Court or “a court” may remand the

statement to the Estimating Conference for “redrafting.”

§ 100.371(13)(c)2., (e)1., Fla. Stat. Outside that situation, the

statutory text does not expressly address, one way or the other, the

Estimating Conference’s authority to redraft a financial impact

statement that it has already approved and submitted to the

Attorney General.

B

The Estimating Conference received notice of the proposed

abortion amendment on September 7, 2023. Then, on November

16, 2023, it submitted its original financial impact statement to the

Attorney General. That statement said:

The proposed amendment was analyzed late in the 2023 calendar year. At that time, litigation was pending before the Florida Supreme Court challenging the Legislature’s 2022 enactment of a prohibition on most abortions being performed if the gestational age of the fetus is more than 15 weeks. If the Court upholds the 2022 law, a 2023 law further reducing the 15 weeks to 6 weeks will take effect 30 days later. This could lead to additional litigation. In order to measure the proposed amendment’s impact on state and local government revenues and costs, a reasonable expectation of what the state of the law will be at the time of the election is required. Because there are several possible outcomes

-5- related to this litigation that differ widely in their effects, the impact of the proposed amendment on state and local government revenues and costs, if any, cannot be determined.

On April 1, 2024, our Court issued an advisory opinion

approving the abortion amendment for placement on the ballot,

Advisory Op. to Att’y Gen. re Limiting Gov’t Interference with

Abortion, 384 So. 3d 122 (Fla. 2024); for the reasons already

explained, our opinion did not address the financial impact

statement. That same day, we also issued our decision in Planned

Parenthood of Southwest and Central Florida v. State, 384 So. 3d 67

(Fla. 2024), where we held that the Florida Constitution’s Privacy

Clause does not guarantee a right to abortion.

Less than a week later, the petitioners filed a circuit court

declaratory judgment action alleging that the original financial

impact statement contained outdated information and was

inaccurate and misleading, in violation of section 100.371(13) and

article XI, section 5 of the Florida Constitution. The government

defendants sought dismissal of the complaint on jurisdictional

grounds but did not defend the original impact statement’s

substantive validity. On June 10, the circuit court granted

-6- summary judgment in favor of the challengers and remanded the

financial impact statement to the Estimating Conference for

redrafting. The government immediately appealed that ruling to the

First District Court of Appeal and eventually obtained a stay of the

circuit court’s order pending the appeal.

The same day the circuit court issued its ruling, the Senate

President and House Speaker directed that the Estimating

Conference be reconvened to review the original financial impact

statement and to “mak[e] changes, if any, the conference deems

appropriate.” The Estimating Conference then held public meetings

on July 1, 8, and 15. “Those meetings were voluntary, not

pursuant to the circuit court’s order.” Fin. Impact Estimating Conf.

v. Floridians Protecting Freedom, Inc., No. 1D2024-1485, 2024 WL

3491704, at *1 (Fla. 1st DCA July 22, 2024). And the petitioners

actively participated in each meeting.

On July 15, the Estimating Conference (over a dissent by one

of its members) adopted and submitted to the Attorney General a

revised financial impact statement for the abortion amendment.

The revised statement reads:

-7- The proposed amendment would result in significantly more abortions and fewer live births per year in Florida. The increase in abortions could be even greater if the amendment invalidates laws requiring parental consent before minors undergo abortions and those ensuring only licensed physicians perform abortions. There is also uncertainty about whether the amendment will require the state to subsidize abortions with public funds. Litigation to resolve those and other uncertainties will result in additional costs to the state government and state courts that will negatively impact the state budget. An increase in abortions may negatively affect the growth of state and local revenues over time. Because the fiscal impact of increased abortions on state and local revenues and costs cannot be estimated with precision, the total impact of the proposed amendment is indeterminate.

The next day, the First District issued an order that

acknowledged the Estimating Conference’s adoption of a revised

financial impact statement and directed the parties to show cause

why the still-pending appeal should not be dismissed as moot. The

sponsor and the government both maintained that the case was not

moot and argued against dismissal. They noted that the issue in

the appeal was not the substantive legality of the original financial

impact statement but whether a circuit court has the authority to

review a financial impact statement at all. The sponsor/appellee

pointed out that the appeal was necessary to resolve “whether the

circuit court can review the redrafted statement,” either in a

-8- continuation of the existing lawsuit or in a new one. The sponsor’s

response to the First District’s show cause order did not say or

imply that the Estimating Conference lacked the authority to adopt

the revised statement.

The First District rejected the parties’ arguments and on July

22 dismissed the appeal as moot. It reasoned that “the order on

review is based on a financial impact statement that is no longer

operative” and that “[n]o judicial determination or action remains

for the circuit court based on the complaint before it.” Fin. Impact

Estimating Conf., 2024 WL 3491704, at *2. The district court added

that, if the challengers wanted to “raise new claims about the

revised financial impact statement,” “they may do so in a separate

proceeding,” where the government could contest the justiciability

of those claims in the context of “an actual controversy.” Id.

Two days later, the petitioners sought quo warranto relief from

this Court.

II

The petitioners argue that the Estimating Conference’s

“unilateral revision of the Financial Impact Statement violates the

-9- text of section 100.371(13), which contemplates judicial review of

Financial Impact Statements and provides for the revision of those

Statements only when ordered by a court.” They ask us to issue a

writ of quo warranto “invalidating the revised Financial Impact

Statement for Amendment 4 as unlawful because the Respondents

lacked legal authority to adopt it.”

The government responds that the petitioners waived or

forfeited any objection to the Estimating Conference’s authority to

voluntarily issue a revised statement and that the Court should

therefore exercise its discretion to deny the petition; that the

Estimating Conference’s voluntary revision of the financial impact

statement is permissible under the governing statute, section

100.371(13); that the Court should deny the petition on the basis of

the “de facto officer doctrine”; and that the sponsor lacks standing.

As to its final argument, the government says that, “[a]lthough there

is ample reason to revisit” certain aspects of this Court’s quo

warranto jurisprudence, “the Court need not do so here.”

We are persuaded by the respondents’ threshold argument

and therefore need not address the others.

- 10 - B

Our Court’s authority to issue a writ of quo warranto derives

from article V, section 3(b)(8) of the Florida Constitution. See W.

Flagler Assocs., Ltd. v. DeSantis, 382 So. 3d 1284 (Fla. 2024)

(discussing this Court’s quo warranto case law). Quo warranto is

an extraordinary writ. Warren v. DeSantis, 365 So. 3d 1137, 1142

(Fla. 2023). Such writs “may be denied for numerous and a variety

of reasons, some of which may not be based upon the merits of the

petition.” Topps v. State, 865 So. 2d 1253, 1257 (Fla. 2004). The

granting of an extraordinary writ lies within the court’s discretion.

Warren, 365 So. 3d at 1142; see also State v. City of Eau Gallie, 126

So. 124, 126 (Fla. 1930) (“A writ of quo warranto is not a writ of

right, but a discretionary writ.”).

To inform its exercise of that discretion, a court “may and

should consider all the circumstances of the case.” City of Winter

Haven v. State ex rel. Landis, 170 So. 100, 108 (Fla. 1936).

Relevant circumstances include those which would establish

“acquiescence or estoppel as against a private person.” Id. It is

self-evident that “one cannot deliberately acquiesce in the act

complained of and then ask a higher court to step in when he later

- 11 - changes his mind.” Alto Adams & George John Miller, Origins and

Current Florida Status of the Extraordinary Writs, 4 Fla. L. Rev. 421,

459 (1951).

Applying these principles here, we must conclude that the

petitioners waived or forfeited their opportunity to seek

extraordinary quo warranto relief challenging the Estimating

Conference’s authority to adopt the revised financial impact

statement. The record demonstrates that those who participated in

the Estimating Conference’s revision process, including the

petitioners, understood that the Conference was acting on its own

initiative. As explained earlier, the circuit court order invalidating

the original financial impact statement was stayed throughout the

period when the Estimating Conference reconvened and worked in

July. Moreover, the Estimating Conference’s clear charge was to

exercise discretion in deciding whether revisions to the original

financial impact statement were necessary.

Yet the petitioners never questioned the Estimating

Conference’s authority to voluntarily adopt a revised financial

impact statement. Instead, they actively participated in every step

of the revision process without objection. They offered oral and

- 12 - written presentations at each of the Estimating Conference’s three

July meetings, thoroughly and forcefully advocating their position

on what the revised financial impact statement should say. Later,

in opposition to dismissal of the appeal then pending in the First

District, the petitioners told the district court that the appeal was

still necessary to settle whether the circuit court could review “the

redrafted statement.” In other words, in the First District the

petitioners themselves adopted the premise that the revised

statement had become the legally operative one (even if, in their

view, it was substantively flawed).

These actions preclude the extraordinary relief the petitioners

now seek. We hold them to their decision to accept the legality of

the Estimating Conference’s revision process and instead to focus

on influencing the content of the revised financial impact

statement. And, as the petitioners themselves acknowledge, the

substantive legality of the revised statement is not before the Court

in this proceeding.

III

The petitioners waived or forfeited their opportunity to seek

- 13 - Conference’s authority to adopt the revised financial impact

statement. Therefore, we deny the petition, without addressing its

merits and without expressing any views on the substantive legality

of the revised statement itself.

No rehearing will be permitted.

It is so ordered.

CANADY, COURIEL, GROSSHANS, and SASSO, JJ., concur. FRANCIS, J., concurs with an opinion. LABARGA, J., dissents with an opinion.

FRANCIS, J., concurring.

I fully concur in the majority decision today. I write only to

express my continued misgivings with our treatment of writs of quo

warranto, see Worrell v. DeSantis, 386 So. 3d 867, 872 (Fla. 2024)

(Francis, J., concurring in result), and my view that Whiley v. Scott,

79 So. 3d 702 (Fla. 2011), stands as, perhaps, the most egregious

example of the writ’s “drift[] from its common law moorings.”

W. Flagler Assocs., Ltd. v. DeSantis, 382 So. 3d 1284, 1286 (Fla.

2024). Under Whiley, we now entertain private-citizen quo

warranto petitions simply because the petitioner is a citizen and

taxpayer. But prior to Whiley, private-citizen standing without

statutory authorization was unprecedented. This “high writ”

- 14 - historically served to guard the State’s “sovereignty from invasion or

[intrusion],” and no individual could petition for the writ without

the consent of the Attorney General (subject to certain statutory

exceptions). State v. Gleason, 12 Fla. 190, 206 (1868); see generally

3 William Blackstone, Commentaries on the Laws of England *262

(defining the English conception of quo warranto as a “writ of right

for the king, against [someone] who . . . usurps any office, franchise

or liberty” of the Crown). Nevertheless, today is not the day to

revisit Whiley and its progeny. But we should do so at the earliest

opportunity.

LABARGA, J., dissenting.

I dissent to the denial of the quo warranto petition on the

grounds of waiver or forfeiture. This Court should decide the

legitimate questions about the respondents’ authority to reconvene

the Estimating Conference and to reconsider and revise the initial

financial impact statement. As the majority describes, this case

involves an extremely fluid procedural history. In my view, that

procedural history placed the petitioners in an impossible position

and, as a result, the petitioners should not be precluded from their

claim to extraordinary relief.

- 15 - It is not an overstatement to say that the circumstances of this

case are quite convoluted. Even the initial financial impact

statement was submitted to the Attorney General and the Secretary

of State during a period of legal uncertainty. At that time, in

November 2023—in two separate cases—the ballot placement of the

proposed “Amendment to Limit Government Interference with

Abortion” and the substantive law relating to the right to have an

abortion were pending in this Court. Those cases would not be

decided for several more months, but a statutory deadline required

that the initial financial impact statement be completed anyhow.

Not only was there legal uncertainty at the time that the initial

financial impact statement was submitted, but also later in the

form of (1) legal proceedings relating to the legality of the initial

statement, and (2) the reconvening of the Estimating Conference to

reconsider and possibly revise the statement. All of these

circumstances led to a legal quagmire, one that does not lend itself

to today’s outcome. This case, involving unique facts, untested

legal issues, and a time-sensitive matter of statewide importance,

calls for more.

- 16 - The majority’s reasoning exposes the quandary the petitioners

were placed in once the Estimating Conference was directed to—

and did—reconvene. As the sponsor of the amendment, Floridians

Protecting Freedom was entitled to contribute to the process of

reconsidering and revising the financial impact statement. Had the

petitioners not engaged in the process, they would have lost their

opportunity to participate and to potentially influence the finished

product. Because they did participate, they are now penalized, and

their arguments are deemed waived or forfeited.

But consider if, perhaps in deference to the ongoing legal

proceedings in the First District Court of Appeal, the petitioners had

remained out of the process and had not “focus[ed] on influencing

the content of the revised financial impact statement.” Majority op.

at 13. Under that scenario, the same quo warranto petition might

have been denied today, except on the basis that it was untimely.

These are among the reasons that I strongly object to the

respondents’ characterization of the petitioners’ actions as those of

intentional delay and gamesmanship.

Further, I take exception with how the majority frames the

salient legal issue. The petition is about more than whether the

- 17 - Estimating Conference could revise the financial impact statement

on its own initiative. Framing the question in that way minimizes

the surrounding circumstances, namely the actions of the Senate

President and the Speaker of the House in their June 10, 2024,

letter directing that the Estimating Conference reconvene on July 1,

2024, “for the purpose of reviewing the Financial Impact Statement

for the proposed constitutional amendment entitled ‘Limiting

Government Interference with Abortion,’ and making changes, if

any, the conference deems appropriate.” The majority emphasizes

the actions of the Estimating Conference, despite the record

evidence of both the June 10, 2024, directive from legislative

leadership and the Conference’s July 15, 2024, submission stating

that “[t]he President of the Senate and the Speaker of the House of

Representatives directed that the Financial Impact Estimating

Conference reconvene regarding the initiative petition entitled

Amendment to Limit Government Interference with Abortion 23-07.”

(Emphasis added.)

Whether, under Florida law, the legislative leadership had the

authority to direct that the Estimating Conference reconvene,

reconsider the initial financial impact statement, and possibly

- 18 - revise it, is part and parcel of the quo warranto issue before this

Court. That question should not be separated from the question of

the authority of the Conference to issue the revised statement.

Finally, today’s decision has significant implications beyond

the present proposed amendment and related financial impact

statement. Despite the majority’s focus on the actions of the

Estimating Conference, make no mistake that today’s decision

opens the door to the legislative branch leadership to intervene in

the citizen-driven constitutional amendment process—even in the

midst of ongoing legal proceedings such as were taking place here.

The quo warranto petition should not be disposed of on the

ground that the petitioners waived or forfeited their claims. For

these reasons, I respectfully yet strenuously dissent.

Original Proceeding – Quo Warranto

Michelle Morton, Daniel B. Tilley, and Samantha J. Past of ACLU Foundation of Florida, Miami, Florida, and Nicholas L.V. Warren of ACLU Foundation of Florida, Jacksonville, Florida; and Margaret Good of Margaret Good Law, PLLC, Sarasota, Florida,

for Petitioners, Floridians Protecting Freedom, Inc. and Sara Latshaw

Ashley Moody, Attorney General, Henry C. Whitaker, Solicitor General, Daniel William Bell, Chief Deputy Solicitor General, David M. Costello, Deputy Solicitor General, and Myles Sean Lynch,

- 19 - Assistant Solicitor General, Office of the Attorney General, Tallahassee, Florida; David Axelman, General Counsel, and Hannah Dushane, Deputy General Counsel, The Florida House of Representatives, Tallahassee, Florida; and Carlos Rey, General Counsel, The Florida Senate, Tallahassee, Florida,

for Respondents, Kathleen Passidomo, in her official capacity as President of the Senate, Paul Renner, in his official capacity as Speaker of the House of Representatives, Chris Spencer, Rachel Greszler, Azhar Khan, and Amy Baker, in their official capacities as Principals of the Financial Impact Estimating Conference, and the Financial Impact Estimating Conference

- 20 -