COLUMN: Labor déjà vu? Net ban teaches history lesson

As Labor Day approaches, we celebrate some of the rights we enjoy as Americans.

As we observe this wonderful holiday, you may wish to reflect on the additional rights you enjoy as a citizen of the great state of Florida. The federal Constitution sets a “floor” on your rights, not a ceiling. In other words, Florida’s Constitution can, and in some cases does, expand on the rights granted in the federal Constitution. It also may include restrictions on rights that are neither required nor prohibited by the U.S. Constitution.

One of the most interesting things about Florida’s Constitution is that it can be changed by Florida’s citizens through a ballot initiative. For example, during the November 1994 general election a tidal wave swept through the small fishing fleets of Florida. The tidal wave took the form of a two-to-one voter approval of the Limiting Marine Net Fishing Amendment to the Florida Constitution, popularly known as the “net ban.”

Niceville, Fla., is home to the Boggy Bayou Mullet Festival. Mullet is a commercial fish product with a long history in Florida.

Not long ago, Justice Terrell of the Florida Supreme Court pointed out the importance of the mullet to the people of Florida by stating that the salt water fishing industry is one of the leading businesses in the coastal counties of the state, at which hundreds of fishermen make their living, and that mullet is the principal product of the industry.

According to Justice Terrell, the real fundamental difference between the Southeasterner and the New Englander is not in political and social philosophy but the difference between mullet and “tater” and cod and “tater.”

Whether we agree that this is the most fundamental difference between northerners and southerners or not, we can all agree that commercial fishing is a very important industry in Florida and that the net ban amendment had a huge impact on that industry.

Following the passage of the amendment, outraged commercial shrimp and mullet fishermen flocked to Tallahassee to protest the net ban.  

They claimed that the ban would put them out of work, violating their right to due process and equal protection under the United States Constitution. However, the court battle over the language of the net ban amendment had already been waged and the commercial fishermen of Florida had failed to put up a fight.

The attorney general is required to ask the Florida Supreme Court for an advisory opinion on each ballot initiative. The Supreme Court then permits interested parties to argue or comment on the initiative.

This procedure is designed to provide an automatic method of challenging a proposed amendment by requiring the attorney general to test the validity of an initiative through the Supreme Court and in turn requiring the Supreme Court to issue an opinion after hearing from interested parties.

In response to the attorney general’s petition on the net ban, the Florida Supreme Court issued an order permitting interested parties to file briefs. Save Our Sealife, the organization advocating the net ban on behalf of recreational fishermen, and the Sierra Club Legal Defense Fund filed briefs in support of the net ban initiative.

However, no briefs were filed in opposition.

In other words, the commercial fishermen and women of Florida missed out completely on their first and best opportunity to oppose the amendment.  

When the Supreme Court provides an opinion on the validity of a ballot initiative, its analysis is limited to two legal issues: whether the proposed amendment’s title and summary are “printed in clear and unambiguous language,” and whether the proposed amendment addresses a single subject.  The court will not consider or rule on the merits of a proposed amendment.

Arguably, the use of the word “limiting” in Limiting Marine Net Fishing was ambiguous “political rhetoric” that did not pass the first part of the test.

It suggested marine net fishing in Florida’s coastal waters was “unlimited.” In actuality, net use was already heavily regulated. The Florida Marine Fisheries Commission had full statutory authority to promulgate rules to protect and recover marine resources in furtherance of state public policy.  

Additionally, opponents could have argued that the amendment addressed more than a single subject. The amendment asked voters to prohibit the use of gill nets, entanglement nets and other nets exceeding 500 square feet. Furthermore, one of the initiative’s purposes was to protect both finfish and shellfish.

The voter desiring to protect only the finfish would have no choice but to protect the shellfish as well. But none of these arguments were made and, without opposition, the initiative was cleared to be on the 1994 ballot by the Supreme Court.  

The point is, if you are a member of a group opposing a proposed amendment to Florida’s constitution, the time to step forward is when the initiative is being considered by the Florida Supreme Court prior to being placed on the ballot.

After it is approved by the voters, an amendment is very tough to overturn.

Bill Martin is an attorney who practices in real estate, construction, uniform commercial code, contract, and commercial litigation, including securities fraud.  He is Of Counsel to Keefe, Anchors, Gordon, & Moyle, P.A. in Fort Walton Beach, Florida.