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State Fires Back In Lawsuit Over Sunshine Amendment

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Florida Capitol Complex (Source: dms.myflorida.com)

Florida Capitol Complex (Source: dms.myflorida.com)

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TALLAHASSEE (CBSMiami/NSF) – Attorney General Pam Bondi and the Florida Legislature asked the state Supreme Court on Monday to throw out a lawsuit challenging the constitutionality of a 2013 law that allows elected officials to use blind trusts to shield their financial assets.

Jim Apthorp, a former aide to the late Gov. Reubin Askew, filed the lawsuit last week, arguing that blind trusts violate the “full and public” disclosure requirements of the open-government Sunshine Amendment, considered one of Askew’s chief legacies. Apthorp is being represented by Talbot “Sandy” D’Alemberte, a former Florida State University president and former president of the American Bar Association who helped craft the amendment.

In a response filed Monday, Bondi asked the court to dismiss the case and argued that “blind trusts have been widely accepted as promoting the very purpose of the Sunshine Amendment: to avoid conflicts of interests.”

Provisions regarding blind trusts were included in a sweeping ethics package pushed by House Speaker Will Weatherford and Senate President Don Gaetz and passed unanimously last year. A 2010 statewide grand jury and the Florida Commission on Ethics also recommended the use of blind trusts as a way for elected officials to avoid the appearance of conflicts between their public duties and their private interests.

Gaetz and Weatherford filed a separate response in support of the law on Monday.

“A qualified blind trust removes the temptation of a public official to advance his or her private interests over the public good. Without any knowledge of the particular assets held by the trust, the public official lacks even the ability to act in his or her self-interest,” lawyers for the House and Senate wrote in a brief.

Apthorp’s petition asks the high court to prohibit Secretary of State Ken Detzner from accepting the qualifying papers of any candidate who has used a blind trust. With less than a month before the weeklong qualifying period begins on June 16, he is seeking an emergency ruling from the Supreme Court.

“Such trusts may hide financial transactions from the person establishing the blind trust, but what is hidden from that person is also hidden from the public. By their very definition, blind trusts cannot satisfy the Sunshine Amendment,” D’Alemberte, a close friend of Askew, wrote.

The legislative leaders earlier dismissed the lawsuit as a “cynically timed political ploy designed and timed to affect the outcome of this year’s elections” because, according to the lawsuit, Gov. Rick Scott is the only elected official who is using a blind trust. Scott, who is seeking re-election, began using a blind trust in 2011 after getting approval from the ethics commission.

Bondi’s lawyers on Monday asked the court to throw out the case or, if not, to refer it to a lower court. Because Apthorp “created an artificial emergency” by filing the lawsuit so close to the qualifying period, the case does not warrant Supreme Court review, Solicitor General Allen Winsor, representing Detzner, wrote.

And, Winsor wrote, the court should reject Apthorp’s request regarding Detzner and financial disclosures because the secretary of state’s role is ministerial.

“The primary question is whether the secretary has an indisputable legal duty to reject filings that the Florida Elections Code commands him to accept. The secretary does not enforce the qualified blind trust statute. His role in this process is to collect and process candidate qualifying papers,” Winsor wrote.

In his filing last week, D’Alemberte used Askew’s own words to demonstrate that the law allowing blind trusts is in conflict with the “plain language” of the Sunshine Amendment, which intended “full and public disclosure.”

And in Monday’s filing, attorneys for Detzner also relied on Askew himself to defend the Legislature’s authority to flesh out the disclosure requirements in the amendment.

“Hardly cynical or suspicious of the Legislature (as his former chief of staff might be), Governor Askew was ‘confident the Legislature will respect the expressed desires of the vast majority of Florida voters and move, in good faith, to further extend the amendment,’ ” Winsor wrote.

While the language of the amendment does give lawmakers the authority to implement the law, it does not allow them to impose any limits on disclosures, D’Alemberte in a telephone interview Monday.

“If a blind trust is full disclosure and is public disclosure, then I lose. But if a blind trust is not full disclosure and is not public, then we win. That’s the way we look at it,” he said.

The First Amendment Foundation, the Associated Press, the Florida Press Association, and other media outlets have filed a friend of the court brief in support of the lawsuit. (Disclosure: The News Service of Florida is a member of the Florida Press Association and the First Amendment Foundation.)

Scott’s campaign issued a statement saying he would comply with whatever the court decides.

“If the courts believe the governor’s blind trust should be dissolved, the governor will gladly dissolve it,” Scott’s campaign manager Melissa Sellers said.

This report is by Dara Kam with The News Service of Florida.

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