STORIES

Judge blocks health-law amendment

By Jim Saunders
7/29/2010 © Health News Florida 

A Leon County circuit judge today blocked a proposed constitutional amendment that targets the federal health-reform law, saying Florida Republican lawmakers included wording in the proposal that would mislead voters.

Judge James O. Shelfer said the proposal --- dubbed by lawmakers as the "Health Care Freedom" amendment --- should not go on the November ballot. He described wording in a ballot summary as "manifestly misleading.''

The amendment, which would require voter approval to take effect, would try to prevent Floridians from being forced by law to "participate in any health-care system.'' It is an attempt to allow people to opt out of a new federal requirement that they eventually buy health insurance or face financial penalties.

The state appears virtually certain to appeal Shelfer's ruling, with the case possibly winding up in the Florida Supreme Court. Ballots for the November election must be printed by Sept. 2.

The lawsuit, filed last month by prominent Democratic attorney Mark Herron on behalf of four voters, targets ballot wording that it contends is politically loaded and misleading. That wording says the amendment is designed to "ensure access to health-care services without waiting lists, protect the doctor-patient relationship (and) guard against mandates that don't work.''

Lawmakers included the wording in an amendment summary that voters would see when they cast ballots. Similar wording or conclusions about waiting lists, doctor-patient relationships and mandates are not in the full text of the proposed amendment.

During a hearing this morning, Shelfer hammered one of the state's attorneys, Russell Kent, with questions about the contested language. As an example, he questioned whether the summary appears to ensure he would not be placed on a waiting list when he calls a doctor --- even though the text of the amendment does not give such an assurance.

"That would be a grand thing to have,'' Shelfer said. "Why is that not misleading?"

Shelfer said he is required, if possible, to give deference to ballot proposals approved by the Legislature. But he said he couldn't go along with the summary on the health-care amendment.

"I think the three phrases that the plaintiff has pointed out in the ballot summary are manifestly misleading,'' Shelfer said.

After Shelfer announced the decision, attorneys for the Legislature quickly requested that he eliminate the summary wording and simply put the full text of the amendment on the ballot. Shelfer, however, said he did not think he could do that because lawmakers approved the proposal with the summary language.

"Why would that not be legislating from the bench?" Shelfer asked.

During the hearing, Kent argued that the disputed wording was only a small part of a more than 300-word summary and that voters have a duty to educate themselves about the full amendment. He also said the plaintiffs in the case were simply trying to keep the amendment from going before voters.

"This is really a political disagreement,'' said Kent, who works for Attorney General Bill McCollum and is representing Secretary of State Dawn Roberts in the case. "This is not about voters being misled.''

But Herron said the disputed phrases were "political rhetoric" that lawmakers included in the ballot summary to try to sway voters.

"They (the phrases) clearly have no other purpose, other than to market the joint resolution (amendment),'' Herron said. 

The new federal health-reform law, formally known as the Patient Protection and Affordable Care Act, touched off noisy, politically charged debates in Tallahassee and other state capitals this spring.

Along almost straight party lines, the Republican-dominated Legislature approved the proposed constitutional amendment April 22 --- just short of one month after President Obama signed the health-reform law.

Amendment supporters contended that the proposal is a matter of freedom and preventing excessive encroachment by the federal government. But Democrats argued that the state doesn't even have the authority to allow people to opt out of the federal law because of what is known as the "Supremacy Clause" of the U.S. Constitution.

The proposed amendment and Thursday's hearing are separate from a federal lawsuit that McCollum has filed against the health-reform law. That lawsuit, which has been joined by other states, is pending in Pensacola.

Herron, who is representing Pinellas County resident Mona Mangat, Orange County resident Gracie Fowler and Palm Beach County residents Diana Demerest and Louisa McQueeney, wrote in a brief that ballot-summary language is "intended to ensure that voters are advised of the amendment's true meaning.'' Typically, the full text of amendments --- which can be lengthy --- do not appear on ballots.

But Herron contends that the summary of Amendment 9 "contains false political commentary intended for no other purpose than to mislead voters into believing that the amendment will remedy problems that do not exist either in the amendment or in the real world.''

A brief by the state's attorneys, however, says the important aspects of the amendment are "described by the ballot summary with sufficient clarity to fairly apprise the voter of what he or she must decide --- whether to prohibit compelled participation in any health-care system, by authorizing any person or employer to pay, and health-care providers to be paid, directly for health-care services without a fine or penalty.''

--Capital Bureau Chief Jim Saunders can be reached at 850-228-0963 or by e-mail at jim.saunders@healthnewsflorida.org.