Justices Grapple with Utility Ballot Measure

Posted By: Garnie Holmes (deleted) Industry, Legislative/Regulatory,

With state leaders, business groups and utilities fighting the measure, the Florida Supreme Court on Wednesday appeared skeptical about a proposed constitutional amendment that would overhaul and deregulate the way residents and businesses get electricity.

Justices listened to more than an hour of arguments about whether they should allow the measure to go before voters during the November 2020 election. The Supreme Court reviews ballot initiatives to make sure the proposed wording is not misleading and meets other legal tests.

Attorneys for supporters of the utility amendment were peppered with questions about the ballot summary, which is the wording that voters see when they go to the polls. Justices, for example, focused on part of the summary that says utility customers would have a right to “generate and sell electricity” and questioned whether the right to sell electricity is guaranteed in the broader amendment.

“A summary cannot be affirmatively misleading,” Chief Justice Charles Canady said at one point during the arguments. “It cannot state something that is untrue. … And I’m having trouble seeing how we can follow that principle and uphold this, given that I can’t find that guarantee in the actual text of the amendment.”

Also, justices questioned part of the summary that says utility customers would have the “right to choose their electricity provider.” Those questions related to part of the amendment that would dramatically limit the future roles of Florida Power & Light, Duke Energy Florida, Tampa Electric Co. and Gulf Power Co. and Florida Public Utilities Co. to building, operating and repairing electrical-transmission and distribution systems --- effectively preventing them from selling power directly to customers.

Justices asked whether the limited role of those utilities, known in the industry as investor-owned utilities, would prevent customers from being able to choose electricity providers.

Article reposted with permission from The News Service of Florida.

“Wouldn’t an average person reading this ballot language, the reasonable voter out there, see that, ‘I can’t choose my current provider if I am happy with them?’ ” Justice Robert Luck said. “Would a reasonable voter say, ‘I would like FPL,’ just using an example, ‘I like my bill, I like what I’m getting, I like the service I am getting, and I want to use FPL.’ Would the reasonable voter reading this understand that the choice cannot be FPL?”

The proposal, backed by a political committee known as Citizens for Energy Choices, calls for creating a “competitive” electricity market that would overhaul the heavily regulated industry in which much of the state receives electricity from Florida Power & Light, Duke, Tampa Electric and Gulf Power.

Supporters, including companies that want to supply electricity in Florida, point to a similar competitive structure that Texas has used for nearly two decades.

But the proposal has drawn opposition from Attorney General Ashley Moody, state House and Senate leaders, powerful business groups and utilities, including municipal utilities and electric cooperatives. The high stakes involved in the issue were apparent Wednesday as the Supreme Court was packed with lawyers, utility officials and representatives of numerous groups watching the arguments.

“This initiative is a seismic change for Florida and Floridians,” Chief Deputy Attorney General John Guard told the justices.

The Supreme Court plays a gatekeeper role in deciding whether citizens’ initiatives go before voters. Justices are not supposed to weigh the merits of proposed constitutional amendments but look at issues such as whether the proposals involve single subjects and whether ballot titles and summaries are misleading.

It is unclear when the Supreme Court will rule on the utility measure. But if the court approves it, Citizens for Energy Choices also would have to submit 766,200 valid petition signatures to the state by a February deadline to get on the 2020 ballot. As of early Wednesday afternoon, the state Division of Elections had received 403,088 signatures.

During the arguments Wednesday, Ken Sukhia, an attorney for Citizens for Energy Choices, said the measure would help do away with utility monopolies in many parts of the state.

“The case involves simply a matter of bringing to a particular industry a free and open choice in a free-market society where a monopoly is no longer needed,” said Sukhia, a former United States attorney. “And I ask you, your honors (the justices), to look closely at the ballot initiative and ask yourselves how else could you accomplish this end?”

But Barry Richard, an attorney for FPL and Gulf Power, said the court has never “faced an amendment that would so radically change an industry of such importance to Floridians. And never before has this court allowed an amendment on the ballot that contained multiple subjects as disparate as does this one.”