IN THE SUPREME COURT OF FLORIDA CASE NOS. SC15-2150 & SC16-123D14-1513
ADVISORY OPINION TO THE ATTORNEY GENERAL
RE: RIGHTS OF ELECTRICITY CONSUMERS REGARDING SOLAR ENERGY CHOICE
MOTION FOR RELIEF FROM JUDGMENT OR ORDER, OR ALTERNATIVE MOTION TO REOPEN CASE DUE TO FRAUD OR OTHER MISCONDUCT ON THE COURT ON THE PART OF PROPONENTS OF CITIZEN INITIATIVE
Florida Solar Energy Industries Association (“FlaSEIA”) and Floridians for Solar Choice, Inc. (“Floridians for”) are both party-opponents to these proceedings involving the advisory opinion on the validity of the initiative petition entitled “Rights of Electricity Consumers Regarding Solar Energy Choice sponsored by Consumers for Smart Solar, Inc. This extraordinary motion is based on newly discovered and previously unforeseen information that undermines and imperils the validity of this Court’s March 31, 2016 advisory opinion in this matter. Advisory Opinion to Attorney General re Rights of Electricity Consumers Regarding Solar Energy Choice, 188 So. 3d 822 (Fla. 2016).1
Recent events demonstrate conclusively that the ballot title and summary of the proposed constitutional amendment are in truth and in fact not compliant with
1 This Court has two jurisdictional bases to reconsider its Advisory decision. First, this Court has common-law authority to hear “a specific fact or facts then existing but not shown by the record and not known by the court or by the party or counsel at the trial, and being of such a vital nature that if known to the court in time would have prevented the rendition and entry of the judgment assailed.” Farrell v. Amica Mut. Ins. Co., 361 So. 2d 408, 410 (Fla. 1978) (discussing the writ of error Coram nobis). Second, assuming that Florida Rule of Civil Procedure 1.540(b) has abolished this writ, as it has in civil cases, State v. Woods, 400 So. 2d 456, 457 (Fla. 1981) (explaining that “writs of error coram nobis have now been abolished in civil cases by Florida Rule of Civil Procedure 1.540(b)”), this Court may hear this motion under Rule 1.540(b), because of the allegations of fraud, misrepresentation, and misconduct raised in the motion.
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constitutional and statutory requirements because they are affirmatively misleading and do not clearly and unambiguously set forth the chief purpose of the amendment, as required by § 101.161(1), Fla. Stat. (2015). Contrary to these mandatory directives, the ballot title and summary do not “provide fair notice of the content of the amendment so that the voter will not be misled as to its purpose, and can cast an intelligent and informed ballot.” Advisory Opinion to Attorney General re Fee on Everglades Sugar Production, 681 So. 2d 1124, 1127 (Fla. 1996).
Consumers for Smart Solar, Inc., the amendment’s proponents, affirmatively withheld relevant and material information as to the objective and intended purpose of the amendment, and thereby misled this Court (and is now misleading the public) as to the adequacy of the ballot title and summary presented to the voters. This affirmative deception was first uncovered and publicized by the Miami Herald on October 18, 2016, in an article titled “Insider reveals deceptive strategy behind Florida’s solar amendment” (attached as Addendum 1-6). That publication disclosed that the sponsors of Amendment 1 “attempted to deceive voters into supporting restrictions on the expansion of solar by shrouding Amendment 1 as a pro-solar amendment.” (Addendum 1). The Herald article references an October 2, 2016 speech by Sal Nuzzo of the James Madison Institute at the State Energy/Environment Leadership Summit in Nashville, Tennessee. The James Madison Institute, according to Mr. Nuzzo, partnered with Consumers for Smart
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Solar and the utilities industry to research and develop a constitutional ballot initiative that was intended to appear to be favorable for solar power, but was really designed to negate the pro-solar effort of the Coalition for Solar Choice. Transcript excerpts of Mr. Nuzzo’s speech were published by the Center for Media and Democracy in October 18, 2016, and are attached at Addendum 7-11.
No part of this basic purpose was disclosed by the amendment’s proponents in proceedings before this Court. Nor did any of the proponents inform the Court that the ballot title and summary were intended to affirmatively mislead voters and thus deny the electorate the ability to case an intelligent and informed ballot. By withholding this now-revealed information and by persuading the Court to find that the title and summary clearly and unambiguously inform the voters as to the true purpose of the amendment, the proponents misled and defrauded this Court by affirmative misstatements and omissions of material fact. Not once did the proponents concede that Amendment 1 was intended to restrict pro-solar choices through political “jiu-jitsu” by severely restricting consumer rights to solar energy through the expansion of regulatory powers. Had the avowed purpose of this amendment been identified in proceedings before this Court, the lack of clarity and the incompleteness of the ballot title and summary would have been evident.
The advisory opinion issued by this Court was the result of the exercise of original jurisdiction in matters involving opinions to the Attorney General pursuant
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to Rule 9.510 of the Florida Rules of Appellate Procedure. In rendering its advisory opinion, this Court was affirmatively misled by the proponents’ deception, misrepresentation, and misconduct through material omissions of crucial information, the effect of which was to work a fraud on this Court. By analogy to Rule 1.540(b) of the Florida Rules of Civil Procedure, when a “final judgment, decree, order, or proceeding” is procured through “fraud ... misrepresentation, or other misconduct of an adverse party[,]” the court may order relief. Such relief in this case is necessary in order that this Court can reopen this case to determine whether, as declared by Justice Pariente in dissent, “the ballot initiative is the proverbial ‘wolf in sheep’s clothing.”” Advisory Opinion to Attorney General re Rights of Electricity Consumers Regarding Solar Energy Choice, 188 So. 3d at 835. The ballot title and summary are devoid of any mention of the intended consequences of Amendment 1, contrary to constitutional requirements of accuracy and clarity. Advisory Opinion to the Attorney General re Tax Limitation, 644 So. 2d 486, 495 (Fla. 1994). As explained in Kainen v. Harris, 769 So. 2d 1029, 1031 (Fla. 2000), a ballot title and summary are deficient when they fail to fairly inform voters of a major consequence of the amendment – in this case, the restrictions on consumer’s rights in favor of government regulatory power.
As Justice Pariente noted, “the biggest problem with the proposed amendment “lies . . . with what it does not say.” Solar Energy Choice, 188 So. 3d at 835
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(dissenting). The ballot summary does not disclose that citizens already have “a right to use solar equipment for individual use afforded by the Florida Constitution and existing Florida statutes and regulations.” Id. at 835. Nor does it disclose that by making the right to generate solar power for one’s personal use the sole constitutional right, the amendment impliedly excludes the constitutional right to share excess power generated with one’s neighbor or otherwise transmit the excess power.2 It certainly does not disclose that, as Mr. Nuzzo touted, the purpose of the amendment is to curtail the expansion of solar power in Florida.
Furthermore, Mr. Nuzzo’s stunning admission illuminates Justice Pariente’s conclusion that the amendment does not give electricity consumers any choices or any rights:
The language of the amendment does not appear to provide any “choice” or provide for the “rights” of electricity consumers who make the “choice” to install solar. For those electricity consumers, the amendment provides only one narrow right: to own or lease solar equipment for their own use. The only “choice” is whether to accept
2 “Under the principle of statutory construction, expressio unius est exclusio alterius, the mention of one thing implies the exclusion of another.” Young v. Progressive Se. Ins. Co., 753 So. 2d 80, 85 (Fla. 2000); Pro-Art Dental Lab, Inc. v. V-Strategic Group, LLC, 986 So. 2d 1244, 1258 (Fla. 2008); Le Scampi Condo. Ass'n, Inc. v. Hall, 41 Fla. L. Weekly D1582 (Fla. 2d DCA July 8, 2016). The proposed amendment gives Floridians the right to generate solar energy for their own use but not the right to generate solar energy for the use of someone else. By granting a right of personal use, the amendment impliedly excludes the right to share excess power with one’s neighbor, a policy advanced by Floridians for Solar Choice. This important consequence is absent from the initiative’s summary and title.
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this narrow right or reject it.
Id. at 836. The amendment protect the status-quo for the utilities companies by
stymieing the growth and proliferation of solar power usage in Florida.
This Court should revisit its ruling, because the misconduct here arose directly in the course of this proceeding and had the intended effect of blunting issues that were or could have been tried. See Parker v. Parker, 950 So. 2d 388, 391 (Fla. 2007) (intrinsic fraud is “fraudulent conduct that arises within a proceeding and pertains to issues in a case that have been tried or could have been tried.”). Movants brought this newly obtained material information to this Court’s attention as readily and as quickly as circumstances would permit. The clear proof of the proponents’ deception and misrepresentation concerning the purpose and intent of Amendment 1 warrants relief in the form of vacating the advisory opinion and ordering new briefing on the issues raised by the previously undisclosed revelations as to the true purpose and intent of Amendment 1. Upon further consideration, this Court should strike the proposed constitutional amendment for failing to inform the electorate of the “true
meaning, and ramifications” of the amendment.
CONCLUSION
The advisory opinion should be withdrawn and the interested parties directed to re-brief the issues raised by the newly obtained information. Following that briefing, this Court should conclude that the proposed constitutional amendment
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should be stricken and any votes cast in favor of the amendment not counted.
CERTIFICATE OF COMPLIANCE
Undersigned counsel certifies that the type used in this brief is 14-point proportionately spaced Times New Roman.
Respectfully submitted,
S/ Benedict P. Kuehne
BENEDICT P. KUEHNE
Florida Bar No. 233293
MICHAEL T. DAVIS
Florida Bar No. 63374
LAW OFFICE OF BENEDICT P. KUEHNE, P.A.
100 S.E. 2nd St., Suite 3550 Miami, FL 33131-2154
Tel: 305.789.5989
Fax: 305.789.5987 ben.kuehne@kuehnelaw.com mdavis@kuehnelaw.com efiling@kuehnelaw.com
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