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The Decline of Popular Constitutionalism: What Has Florida Come To?

JURIST Guest Columnist Anna Dwyer, St. John's University School of Law Class of 2013, is the author of the seventh article in a 15-part series from the staffers of the Journal of Civil Rights and Economic Development. She argues that the Florida state courts have misinterpreted a statute which affects public employees and undermined the wishes of Florida citizens...

Florida has been impermissibly undermining the intent of its citizens and forfeiting the benefits of public employees. Florida's legislature and its high courts have interpreted a particular statute in a way that blind-sides public employees who opt to plead nolo contendere for crimes involving breach of the public trust. This statutory interpretation conflicts with a constitutional provision that was approved by a state ballot initiative and thus undermines the democratic process.

The statute in question stipulates that public employees in Florida are subject to benefits forfeiture if they are convicted of a crime involving a breach of the public trust. This statute is meant to effectuate an amendment to the Florida Constitution, which was enacted in 1976 by the people via ballot initiative to ensure the continued integrity of public employees working for the state. However, the particular amendment in question did not define the term "conviction." Subsequent to the ballot initiative, the legislature passed the Florida statute in direct contravention of the Florida constitution. This statute defines the term conviction broadly enough to include pleas of nolo contendere.

The problem with this broad definition is that it does not do justice to the intent of the citizens of Florida as they voted on the amendment in 1976. State constitutions take precedent over state statutes, which may not abridge or deny any rights that have been enumerated within the particular state's constitution. In other words, state constitutions set the floor for the rights that citizens of a particular state may enjoy and state statutes may not attempt in any way to diminish these rights.

By defining the term conviction more broadly than it was intended, the legislature impinges on the rights of public employees — namely, their right to retain their pension benefits unless they are convicted of a crime. It also undermines the very intent of the citizens who voted. The citizens of Florida would never have meant or intended the statute to cover nolo contendere pleas, as the implications of such pleas are controversial and unsettled. The plain meaning of the word conviction, as an ordinary voter would understand it, refers to the act or process of finding a person guilty of a crime. Including nolo contendere pleas within this definition is not how an ordinary voter would understand the term conviction, particularly when such pleas involve a withheld adjudication. In addition to being true to the voters' desires and understanding in passing the amendment, Florida laws and regulations themselves seem to disallow the loss of benefits for nolo contendere pleas.

Recently, in Montgomery v. State, decided in 2005, the Florida Supreme Court held that nolo contendere pleas count as prior convictions for the purposes of criminal sentencing regardless of whether or not adjudication was withheld. This decision overruled years of precedent, including myriad cases that stood for the opposite proposition that these pleas do not count as prior convictions for purposes of sentencing. Additionally, Florida's criminal sentencing guidelines explicitly indicate that the only situation in which these pleas should be considered convictions is in determining sentencing for recidivist criminals. Including nolo contendere pleas in cases involving forfeiture of pension benefits means that public employees who have entered these pleas are being treated as convicted felons, even though regulations explicitly state that they are not to be deemed so. State statutes must comport with the guidelines of their constitutional counterparts by making sure not to abridge or deny any of the rights enumerated in the state's constitution.

Although the interest at question with this Florida statute is a negative right — the right of the state to take pension benefits away from public employees who have been convicted of a felony — the practical effect of broadening the class of public employees who are subject to these forfeitures is that it extends the class of employees beyond the limits stipulated by Florida's constitution. Not only is this unconstitutional, but it undermines the democratic process by giving new meaning to terms that were voted into place by Florida citizens.

The Florida legislature should begin by striking down this statute immediately. By striking down this statute, the legislature would rectify the inherent conflict between the statute and its constitutional counterpart. Additionally, the legislature would be affording more respect to the wishes of Florida's citizens regarding the constitutional amendment of 1976. Alternatively, the legislature should recast this initiative to the people of Florida so they can vote again to determine whether public employees who enter nolo contendere pleas and convictions should be subject to benefits forfeiture. If the citizens decide to include nolo contendere pleas, the statute would remain constitutional and, though the state of the law would remain unchanged, the perversion of the ballot initiative system would be corrected.

Anna Dwyer is an associated editor of the Journal of Civil Rights and Economic Development. She is a member of the Intellectual Property Law Society.

Suggested citation: Anna Dwyer, The Decline of Popular Constitutionalism in America: What Has Democracy Come to?, JURIST - Dateline, Oct. 15, 2012, http://jurist.org/dateline/2012/10/rebecca-bielski-mandatory-arbitration.php.

This article was prepared for publication by Emily Osgood, an associate editor for JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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