Professional Documents
Culture Documents
ABIGAIL PRICE-WILLIAMS
Miami-Dade County Attorney
Stephen P. Clark Center
111 N.W. 1st Street, Suite 2810
Miami, Florida 33128
Telephone: 305-375-5151
Fax: 305-375-5634
By: Oren Rosenthal and Michael B. Valdes
Assistant County Attorneys
Florida Bar No. 86320 & 93129
Counsel for Appellants
TABLE OF CONTENTS
Page
Table of Contents .................................................................................................. i
Table of Citations ................................................................................................ iii
Statement of the Case and Facts ......................................................................... 1
Summary of Argument ...................................................................................... 13
Standard of Review ............................................................................................ 14
Argument ............................................................................................................ 15
I. The Trial Court Erred in its Application of the Requirements for
Issuance of a Writ of Mandamus ................................................................ 15
A. The Trial Court Failed to Follow the Procedural
Requirements Under Florida law for Issuing a Writ of
Mandamus ............................................................................................ 16
B. The Trial Court Also Improperly Relied upon Disputed Facts
to Render its Decision .......................................................................... 19
C. The Trial Court Failed to Afford Any Deference to MiamiDade Countys Interpretation of its Own Charter ................................ 21
D. Even if the Trial Courts Procedural Errors Are Ignored,
Petitioners Still Failed to Demonstrate a Clear Legal Right ............ 23
E. Petitioners Failed to Demonstrate that the Board of County
Commissioners had a Ministerial Duty ................................................ 26
II. The Ballot Language is Illegal Under Florida Law Because It
Misleads Voters and Prevents Them from Casting an Intelligent
and Informed Ballot ................................................................................... 30
TABLE OF CONTENTS
Page
III. The Ballot Title Violates the Express Requirement of Florida
Law ............................................................................................................ 40
IV. The Underlying Ordinance is Unconstitutional......................................... 42
V. The Trial Court Order Ignored the Charter Requirement that
this Petition was not Timely for the November 2016 General
Election Ballot ........................................................................................... 46
VI. The Status of the November 8, 2016 Presidential Election
Ballot .......................................................................................................... 47
Conclusion........................................................................................................... 50
Certificate of Service .......................................................................................... 52
Certificate of Type Size and Style .................................................................... 52
ii
TABLE OF CITATIONS
Cases
Pages(s)
iii
TABLE OF CITATIONS
Cases
Pages(s)
iv
TABLE OF CITATIONS
Cases
Pages(s)
TABLE OF CITATIONS
Cases
Pages(s)
vi
TABLE OF CITATIONS
Cases
Pages(s)
Nash v. Richard,
166 So. 2d 624 (Fla. 3d DCA 1964) .................................................................... 17
Nunez v. City of Hialeah,
477 So. 2d 655 (Fla. 3d DCA 1985) .................................................................... 47
Odem v. Constr. Trades Qualifying Bd. of Dade County,
309 So. 2d 622 (Fla. 3d DCA 1975) .................................................................... 23
Perry v. Judd,
471 F. Appx 219 (4th Cir. 2012)......................................................................... 50
Reedus v. Friedman,
287 So. 2d 355, 357 (Fla. 3d DCA 1973) ............................................................ 15
Reform Party of Fla. v. Black,
885 So. 2d 303 (Fla. 2004) ................................................................................... 48
Roberts v. Doyle,
43 So. 3d 654 (Fla. 2010) ..................................................................................... 38
S. Realty & Utilities Corp. v. State ex rel. Goldner,
181 So. 2d 552 (Fla. 3d DCA 1966) ............................................................. 18, 19
Smith v. Smathers,
372 So. 2d 427 (Fla. 1979) ................................................................................... 50
Sola v. Corona,
126 So. 3d 273 (Fla. 3d DCA 2011) .................................................................... 13
SpeechNow.org v. Fed. Election Comm'n,
599 F.3d 686 (D.C. Cir. 2010) ............................................................................. 38
State ex rel. Int'l Ass'n of Firefighters, Local 2019 v. Bd. of Cty. Comm'rs,
Broward Cty., 254 So. 2d 195 (Fla. 1971) ........................................................... 20
vii
TABLE OF CITATIONS
Cases
Pages(s)
Pages(s)
viii
TABLE OF CITATIONS
Cases
Pages(s)
ix
The Florida Supreme Court has recognized that sufficiency as to form requires
full compliance with the requirements of section 101.161(1) of the Florida
Statutes. County of Orange v. Webster, 546 So. 2d 1033, 1036 (Fla. 1986).
and the Board has taken no action to adopt the ordinance, then the proposal shall
be placed on the ballot without further action of the Board. Id. at 8.01(4). That
ballot shall be the next scheduled county-wide election after the expiration of the
above Charter-mandated time frames, id. at 8.01(5)(a), which in this case would
be August 2018.4
In this case, Christian Ulverton behalf of Accountable Miami-Dade
(collectively, the Petitioners) submitted an initiative petition, including proposed
ballot language, to the Clerk of the Circuit Court on April 26, 2016. See Appx at
90.5 The petition contains the following ballot language:
Title:
INITIATORY
ORDINANCE
PETITION,
REVISING
CAMPAIGN FINANCE CONTRIBUTION LIMITS AND
TRUST FUND, AND BANNING CERTAIN CONTRACTOR
CONTRIBUTIONS
goes beyond the language in the ballot question. The proposed ordinance would,
among other things: (1) prohibit any personexcept political parties or their
affiliated political committees6from making a contribution of more than $250 to
any candidate for the non-partisan offices of County Mayor, the County
Commission, Miami-Dade Community Councils, the School Board, or the Board
of Supervisors of the Soil & Water Conservation District7; (2) prohibit any firm
with a contract in excess of $250,000 with Miami-Dade County for construction or
maintenance work, supply or materials purchases, or professional servicesbut
not labor unions negotiating collective bargaining agreementsfrom making any
contributions to any candidates for the aforementioned offices; (3) prohibit those
same firms from contributing to a political committee that accepts contributions or
makes expenditures expressly advocating the election or defeat of any candidate
6
for any public officeincluding federal, state, and other non-County offices;
(4) extend those same prohibitions to any individual who is a corporate officer, a
member of the board of directors, an owner of five percent or more, or an
employee with managerial or discretionary authority of those firmsand further
extend those same prohibitions to those individuals spouses and children,
regardless of age; (5) subject anyone violating these provisions, including
individual donors, to a fine of up to $5,000 or imprisonment of up to 364 days;
(6) exclude the Property Appraiser, an office created under the County Charter,
from all such regulations and relieve him or her from all current local campaign
finance rules; (7) make minor revisions to the already existing structure for the
public financing of political campaigns; and (8) prohibit County elected officials
and employees from soliciting charitable donations to either the County or to
charitable organizations such as the United Way or Red Cross. See id. at 96-112.
Two days after the petition was submitted, the Clerk of the Circuit Court (the
Clerk) approved the petition as to form, but expressly notified the Petitioners that
this review did not address the substance of the petition, its legal sufficiency, or its
factual accuracy. See id. at 90-91. The Clerk also directed the Petitioners to review
Sections 3.068 and 8.01 of the Home Rule Charter and advised them that [i]t is the
responsibility of the petitioner to comply with all applicable laws governing the
initiative petition process. Id. (emphasis in original).
Next, the initiatory petition was placed on the May 17, 2016 [County
Commission] Agenda for public hearing. Id. at 90. The purpose of the public
hearing was to provide the Petitioners the opportunity to speak in support of their
proposal. So, the public hearing was opened, members of the public were permitted
to speak, and the County Commission considered no motions and took no other
actions at the public hearing.9
Additionally, the Clerk informed the Petitioners that they had until August 26,
2016or 120 days after the Clerks April 28, 2016 approval as to formto obtain
the necessary signatures. This deadline is wholly unrelated to the relevant
deadlines to ensure placement on the ballot of the November 2016 General
Election; it is simply the time frame provided under the Home Rule Charter for
circulation of initiatory petitions. See MIAMI-DADE COUNTY, FLA., HOME RULE
CHARTER 8.01(2) (The person or persons circulating the petition shall, within
120 days of the approval of the form of the petition, obtain the valid signatures of
voters in the county . . .). The Petitioners were also informed by the Miami-Dade
County Elections Department that ballot questions submitted by municipalities by
The trial courts Order erroneously stated that [t]he Board approved the petition
as to form at the May 17, 2016 commission meeting. Appx at 195 (emphasis
added). No such approval occurred. In fact, the Board took no action other than
to let members of the public speak on the petition. Notably, the trial court did not
use the phrase it is undisputed for this description of events as it did for all
other factual descriptions in the same paragraph. See id.
August 9, 2016 in final form and with all required legal approvals would be
placed on the November General Election Ballot. Appx at 190 (emphasis added).
At no time did anyone from [the Miami-Dade County Department of Elections]
inform the initiatory Petitioners that an initiatory petition submitted on August 2,
2016 for [subsequent] canvass and review by the Board of County Commissioners
would be guaranteed to make the November 2016 General Election ballot and not
be rolled-over to the next county-wide election. Id.
Ultimately, Petitioners filed their signed petitions with the Clerk of the Board
of County Commissioners on August 2, 2016. See id. at 151. Shortly thereafter, the
Miami-Dade County Attorneys Office reached out to counsel for the Petitioners in
anticipation of the Boards meeting and notified them that it had concerns as to the
legal sufficiency of the initiatory petition. See id. at 84. Despite those concerns,
Petitioners never sought a declaratory judgment or injunctive relief on this matter.
Once signed petitions are submitted, the County Commission has 30 days to
order a canvass of the signatures thereon to determine the sufficiency of the
signatures. MIAMI-DADE COUNTY, FLA., HOME RULE CHARTER 8.01(3).
However, the County Commission has traditionally reserved the month of August
as its summer recess period. See Appx at 149 (noting a BCC Recess from July
25 to August 31). In fact, the County Commissions next regularly-scheduled
meeting was not until September 7, 2016.10 See id. at 148.
10
If the Petitioners ultimate goal was to actually secure placement of this question
on the November 2016 General Election ballot, it is for them to explain why they
chose to file their signed petitions: (1) a mere 7 days before the deadline the
22,
2016
Meeting
at
31:20,
33:40,
35:40,
2:24:45
(link
at
Supervisor gave them for a completely reviewed and approved ballot question;
and (2) during the one period in the entire year when the Board did not have a
regularly scheduled meeting for more than 30 days.
http://miamidade.granicus.com/MediaPlayer.php?view_id=2&clip_id=3984). As a
result, the Board ordered the Supervisor of Elections to canvass the submitted
petitions on an expedited basis, with an intent to complete the canvass by the
Boards next regularly scheduled meeting on September 7, 2016.11 The Board also
deferred its review as to the sufficiency of the petition, as prescribed in the Home
Rule Charter, until the canvass was completed. See id.
When it ordered the canvass, the Board also committed to devoting the
necessary resources to enable the Supervisor of Elections to hire the staff required
to complete this undertaking while the Countys Department of Elections was
simultaneously conducting the August 2016 Primary Election, conducting a
subsequent countywide recount for Circuit Judge, Group 5, and necessarily
devoting considerable in-house staff and resources to those efforts. See id. at 168.
Nevertheless, the canvass was completed well ahead of the timeline provided in
Section 12-23 of the Code, and it is estimated that the expedited canvass will cost
nearly half-a-million dollars in taxpayer funds. See id. at 170.12
On September 2, 2016, while the canvass was underway, the Petitioners filed a
11
12
First Amended Petition for Writ of Mandamus (Mandamus Petition). See id. at
13. In it filing, the Petitioners requested the trial court to compel Miami-Dade
County to order that the campaign finance reform initiative ordinance petition be
placed on the November 8, 2016 ballot or adopt the proposed ordinance if the
Supervisor of Elections determines that the petition contains a sufficient number of
signatures pursuant to the Home Rule Amendment and the Miami-Dade County
Home Rule Charter. Id. at 14. Because the canvass had not been completed and
the Board had not yet taken any action as to the sufficiency of the petition,
Petitioners request for relief was entirely prospective. See id. at 25 (noting that
grounds for relief are based on information and belief). Simultaneously,
Petitioners filed a Motion to Expedite Consideration of Amended Petition for Writ
of Mandamus. See id. at 61.
On September 6, 2015, the trial court requested that all parties appear for a
hearing on September 8, 2016 at 10 a.m. Counsel for Miami-Dade County inquired
as to whether the hearing would be a status conference on the Motion to Expedite
or a hearing on the merits of the Mandamus Petition. The trial courts judicial
assistant subsequently informed the parties that [t]he judge will be hearing the
Motion that was filed. . . . the motion to Expedite. See Supp. Appx at 5.13 At no
time did the trial court issue an alternative writ of mandamus or give the County an
13
Along with the filing of this Initial Brief, the County is filing a Motion to
Supplement Record and For Leave to File Supplemental Appendix. Citations to
the Supplemental Appendix refer to the page numbering generated at the topright corner of each page.
10
ability to show cause why such mandamus should not be granted. See Fla. R. Civ.
P. 1.630(d)(2).
Later on September 6, 2016, the Supervisor of Elections submitted a
certification to the Board, which indicated that the petition had been fully
canvassed and contained 55,835 valid signatures and 72,189 invalid signatures. See
Supp. Appx at 2. The Supervisors certification was subsequently added on to the
agenda for the Boards meeting scheduled for the following day, September 7,
2016. See id. at 1.
At the September 7 meeting, the County Commission discussed both the status
of the canvass and also the sufficiency of the petition. See Appx at 196. At that
meeting, the Board found that the petition was not legally sufficient and deficient
as to form because the ballot language was misleading and the ballot title did not
comply with the essential requirements under Florida law. See id. In particular, the
initiatory petitions ballot title contains more words than is permitted under
101.161, Fla. Stat., and the ballot summary hides the ball and relies on improper
political rhetoric. Within an hour of that vote, Miami-Dade County filed a
Consolidated Motion to Dismiss and Response to Motion to Expedite in this case.
See id. at 65-191.
On September 8, 2016, the trial court held the scheduled hearing anddespite
the judges previous notice that the hearing would address the Motion to
Expediteproceeded to exclusively ask questions and entertain argument on the
11
Because the court informed both parties prior to the hearing that this would not
be a hearing on the merits but solely a hearing on the Motion to Expedite, see
Supp. Appx at 7, neither party ordered a court reporter for the hearing and thus
no transcript is available.
15
This Court has considered emergency appeals caused by a trial court order that
would have disrupted the election process at the last minute without regard to
legal process or the applicable law. See Sola v. Corona, 126 So. 3d 273 (Fla. 3d
DCA 2011) (vacating an injunctive order issued on eve of an election that was
totally deficient in form, and entirely unsupported by substantive law). MiamiDade County respectfully requests that this Court expeditiously enter a similar
Order in this matter.
12
13
insufficient ballot question on the ballot it does not. It also failed to afford the
County both the due process and deference that Courts throughout Florida afford
governments in responding to such extraordinary writs. Instead, the trial court
made factual and legal assumptions that are just plain wrong. And, when
confronted with fact and law regarding the illegal length of the ballot title and
unconstitutionality of the ordinance to be approved by the voters, the trial court
simply directed the County to ignore the law in the interest of the trial courts
conception of justice.
Contrary to the trial courts order, the initiatory petition presented to the County
Commission was fatally flawed. The petition proposed to place highly deceptive
ballot language before the voters, who would be misled as to the actual ordinance
they were being asked to adopt; the petition contained a ballot title that failed to
comply with Florida law; and major portions of the underlying ordinance violated
both the United States and Florida Constitutions. Moreover, although the
petitioners intended to have the petition placed on the November 8, 2016 General
Election Ballot, they submitted the signed initiatory petitions when it was simply
too late in the General Election timeline to timely canvass and go through the
remaining Charter process for placement on that ballot.
Rather than address these issues, the trial court mischaracterized the record,
ignored Florida law, and rewrote the process laid out in the Home Rule Charter to
reach its conclusion. Such a result requires reversal.
14
STANDARD OF REVIEW
Because the final order granting mandamus in this case is an order in an
original civil proceeding in the circuit court, the Order is properly challenged by
direct appeal to the district court. Browning v. Young, 993 So. 2d 64 (Fla. 1st DCA
2008) (holding that original mandamus actions seeking to place a race on a ballot
are challenged by direct appeal and not second-tier certiorari review). As the issues
raised require statutory construction, the standard of review is de novo. See
Diamond Aircraft Industries, Inc. v. Horowitch, 107 So. 3d 362, 366 (Fla. 2013);
Borden v. East-European Ins. Co., 921 So. 2d 587, 591 (Fla. 2006).
ARGUMENT
I. The Trial Court Erred in its Application of the Requirements for Issuance
of a Writ of Mandamus
Florida law is well settled that a writ of mandamus should not be issued unless
the allegations in the petition make a prima facie case that the respondent has a
duty imposed by law and the petitioner has a right to require its performance.
Reedus v. Friedman, 287 So. 2d 355, 357 (Fla. 3d DCA 1973). The petitioner must
demonstrate not only a clear legal right to the performance of a ministerial duty by
the respondent, but also that no other adequate remedy exists. Morse Diesel Intl,
Inc. v. 2000 Island Blvd., Inc., 698 So. 2d 309, 312 (Fla. 3d DCA 1997); Fla.
League of Cities v. Smith, 607 So. 2d 397, 400-01 (Fla. 1992). In addition,
mandamus may not be used to establish the existence of such a right, but only to
enforce a right already clearly and certainly established in the law. Morse Diesel
Intl, 698 So. 2d at 312; Smith, 607 So. 2d at 400. Moreover, mandamus is
15
16
at the time of filing, the Mandamus Petition was unripe, premature, and therefore
improper. See Nash v. Richard, 166 So. 2d 624, 625 (Fla. 3d DCA 1964) (An
inclination or an intention not to do an official act may not be reached by
mandamus.); State ex rel. Robertson v. Gessner, 16 So. 2d 51, 52 (Fla. 1943)
(noting that there is merit to the contention that mandamus should not be sought
if the claim involved a mere anticipatory neglect of duty).
Although Petitioners could not have shown a prima facie case for relief at the
time they filed their Mandamus Petition, the trial court did not dismiss this action.
See Gilliam v. State, 996 So. 2d 956, 958 (Fla. 2d DCA 2008) (If a petition for
writ of mandamus does not state a facially sufficient claim for relief, the trial court
may dismiss it.). Instead, on September 5, 2016, the trial court ordered the parties,
before the County had taken any relevant actions, to appear at a hearing on lessthan-48-hours notice on the Motion to Expedite. See Supp. Appx at 7.
Under Florida law, if a trial court finds that a petition for writ of mandamus
states a prima facie case for relief, the trial court must issue an alternative writ, see
Fla. R. Civ. P. 1.630(d)(3), which is essentially an order to show cause why the
requested relief should not be granted. Gilliam, 996 So. 2d at 958 (emphasis
added). In this case, no preliminary determination was made, no alternative writ
was ever issued, and the County was never asked to respond to the Mandamus
Petition. Nevertheless, the Mandamus Petition was granted. The trial courts ruling
runs wholly contrary to the procedures for mandamus actions. See S. Realty &
Utilities Corp. v. State ex rel. Goldner, 181 So. 2d 552, 55354 (Fla. 3d DCA
1966) (reversing judgment and vacating writ of mandamus because [t]he law
17
18
66.16 And, when trial courts have disregarded the legitimate concerns of
respondents, ignored the process, and issued ad hoc rulings, their actions have been
reversed. See Atkins v. State ex rel. Shelton, 187 So. 363, 365 (1939) (Without
going into the merits of the case, we may say that the court, in terminating the
controversy in such unwarranted haste, in the face of the requests of counsel for
respondent that further time be allowed . . . did not exercise a reasonable judicial
discretion. The haste with which the case was disposed of amounted to a denial of
due process of law because respondent was not allowed sufficient time in which to
adequately prepare his defense.); S. Realty & Utilities Corp., 181 So. 2d at 553
54 (relying on same reasoning as Atkins); Conner, 541 So. 2d at 1256-57.
Accordingly, the County requests that a similar reversal be issued in this matter.
B. The Trial Court Also Improperly Relied Upon Disputed Facts
to Render Its Decision
Because mandamus is an extraordinary writ, it may be used only to enforce a
right that is both clear and certain. Florida League of Cities, 607 So. 2d at 400.
Furthermore, that required clarity and certainty must exist in both the applicable
law and applicable facts at issue. See, e.g., State ex rel. Int'l Ass'n of Firefighters,
Local 2019 v. Bd. of Cty. Comm'rs, Broward Cty., 254 So. 2d 195, 196 (Fla. 1971)
(The Court having consistently ruled that it will not entertain a Petition for Writ
16
That the filing of the Mandamus Petition and subsequent hearing ran up against
the deadlines for the Supervisor of Elections final preparation for the November
2016 General Election ballot is a problem entirely of Petitioners own making.
Petitioners had full knowledge of these legal issues at the beginning of August
and could have filed an action for injunctive relief or declaratory judgment well
before this eleventh-hour race to the November 2016 General Election ballot.
19
of Mandamus which raises substantial issues of fact . . . ); Times Pub. Co., Inc. v.
City of St. Petersburg, 558 So.2d 487 (Fla. 2d DCA 1990) (A peremptory writ of
mandamus is improper when material issues of fact are unresolved.). In this case,
the trial courts Order relied on at least three critical facts that are in dispute.
First, the Order states that [t]he Board approved the petition as to form at the
May 17, 2016 commission meeting. Appx at 195, 198. Yet, there is no evidence
in the record of this fact, and, more importantly, there cannot be any evidence of
this fact, because the Board took no action at that public hearing. See supra at 6.
Second, the Order states that the Board did not take up review of the signed
petitions until September 7, 2016 and could not convene a quorum prior to the
end of the summer recess. But the record indisputably shows that the Board
convened a special meeting on August 22, 2016, during its summer recess, and
discussed the sufficiency of the initiatory petition at that meeting. See Appx at 2425. In addition, the Board, at the request of Petitioners, deferred the sufficiency
determination until after the canvass. Id. at 73.
Third, the Order provides an inaccurate and disputed legislative history of the
Home Rule Charter that purports to rely on statements made during the hearing by
the Countys counsel statements that are mischaracterized to imply that these
matters were undisputed. See id. at 197-98 (This Court accepts this account of the
legislative history of the statute and concludes it was the intent of the voters . . . to
vest the initiative power in the electorate and have the electorate adopt or reject it
at the polls.). In actuality, the County presented contrary evidence in its Motion
and at the hearing that the voters of Miami-Dade County expressly decided in a
20
21
shall be placed on the ballot without further action of the Board. MIAMI-DADE
COUNTY, FLA., HOME RULE CHARTER 8.01(4). Miami-Dade County argued that
the natural reading of this provision provides for the Board to have a 30-day period
to adopt an ordinance submitted by initiatory petition that begins after the petition
has fully been canvassed and deemed sufficient. Petitioners, on the other hand,
argued that the 30-day period begins when the petitions are first filed with the
Board in order to be canvassed even though this would effectively mean that the
Boards 30-day period to adopt a sufficient petition would expire before the
Board would have the results of the canvass and know whether the Petitioners had
even collected enough signatures to be sufficient.17 And, although resolving this
difference of opinion was critical to deciding whether the November 2016 General
Election ballot was available or unavailable to Petitioners, the trial court never
discussed it. See generally Appx at 192-200.
In so doing, the trial court not only misapplied the relevant standard for
mandamus, it also ignored the principle that a Countys interpretation of its own
governing law is entitled to judicial deference. See Donovan v. Okaloosa County,
82 So. 3d 801, 807 (Fla. 2012) (The Countys interpretation of its own ordinance
is entitled to deference.); Southlake Property Assocs., Ltd. v. City of Morrow, 112
17
22
F.3d 1114, 1119 (11th Cir. 1997) (holding that courts must defer to a citys
statutory interpretation of its own ordinance so long as interpretation is based on a
permissible construction of the ordinance). This principle directs courts to defer to
and not overturn an agencys or Countys interpretation of its own governing
laws and guidelines so long as the interpretation is within the reasonable range of
permissible interpretations. See Atlantic Shores Resort, LLC v. 507 South Street
Corp., 937 So. 2d 1239, 1245 (Fla. 3d DCA 2006); Miami-Dade County v. Church
& Tower, Inc., 715 So. 2d 1084, 1088 (Fla. 3d DCA 1998).
Here, the Countys interpretation of its own Charter and ordinances is not only
reasonable and permissible, but indeed, correct. The trial court erred in substituting
his interpretation to find a ministerial duty where none exists, see infra, and for
that reason alone, mandamus must be reversed.
D. Even if the Trial Courts Procedural Errors Are Ignored,
Petitioners Still Failed to Demonstrate a Clear Legal Right
Aside from the procedural flaws, the trial court also erred in applying the
elements necessary for mandamus. In its Order, the trial court nowhere considered
whether petitioners had a clear legal right. Odem v. Constr. Trades Qualifying
Bd. of Dade County, 309 So. 2d 622, 623 (Fla. 3d DCA 1975) (affirming quash of
mandamus petition because petitioner failed to demonstrate that he satisfied
underlying requirements for trade license). Petitioners failed to demonstrate that
they are entitled to have a facially defective ballot title, facially misleading ballot
summary, and patently unconstitutional ordinance placed before the voters and,
as demonstrated below, the initiative petition suffers from of all these defects.,
23
24
As this Court has long recognized, An election should not be held if the
ordinance proposed was clearly invalid on its face. Dulaney v. City of Miami
Beach, 96 So. 2d 550, 551 (Fla. 3d DCA 1957); see also City of Miami Beach v.
Smith, 251 So. 2d 290, 29293 (Fla. 3d DCA 1971) (it would have been proper
for the trial court to have rejected the petition as a basis for amendment if it had
appeared by the petition on its face that the matter to be enacted by the
amendment, if accepted by the electorate, would have been unconstitutional or
prohibited by law . . . .). But see City of Boca Raton v. Siml, 96 So. 3d 1140, 1142
(Fla. 4th DCA 2012) (Prior to election, initiatives on proposed ordinances should
not be removed from the ballot unless they are unconstitutional in their entirety,
and challenges based upon non-constitutional grounds should not be decided prior
to election.). Although, in Wilson v. Dade County, 369 So. 2d 1002 (Fla. 3d DCA
1979) which the trial court relied upon, see Appx at 194-95 this Court
recognized that no case had actually precluded an election based on such a
determination, Wilson, 369 So. 2d. at 1004, none of those decisions considered a
ballot question and ordinance that were facially unconstitutional and contrary to
law. But the principle bars mandamus here: a petitioner is not clearly entitled to
have an unconstitutional question put to the voters, much less to have an
unconstitutional ordinance presented to the voters through a misleading ballot
summary that hides the ordinances facial defects, see infra.
The trial court further failed to find that Petitioners had a clear legal right to
have their ballot question heard on the November 2016 General Election Ballot. As
explained further below, the initiative petition process set forth in the Home Rule
25
Charter presents a timetable that in fact precludes the ballot question from being
heard now. Instead, the Charter requires that it be placed on the next available
countywide election, which would be August 2018. Neither Petitioners nor the trial
court presented any basis to disregard the Charter-mandated process and thereby
have the ballot question placed based on Petitioners political preferences. See
Morse Diesel Intern., Inc., 698 So. 2d at 312 ([Petitioner] did not establish a clear
legal right to mandamus where the clerk's answer and affirmative defenses created
a genuine issue of fact. In granting the writ, we think that the court improperly
adjudicated rather than enforced an established right to these funds.).
Without a clear legal right to have the ballot question placed on the November
2016 General Election ballot, mandamus was improperly granted here. At the very
least, even if mandamus were otherwise appropriate here which it is not the
mandamus should have directed that the ballot question be placed on the next
available countywide election ballot and not the November 2016 ballot. But
because there was no clear legal right to have a facially defective and misleading
question and patently unconstitutional ordinance presented to the voters,
mandamus should not have issued at all.
E. Petitioners Failed to Demonstrate that the County Commission
had a Purely Ministerial Duty
The trial court determined, without basis, that the County Commission had a
ministerial duty to place a legally insufficient ballot question on the ballot. In
essentially rewriting the Countys Home Rule Charter, the trial court relied on two
inapposite cases: Wright v. Frankel, 965 So. 2d 365 (Fla. 4th DCA 2007) and City
26
Critically, the operative legislation in both Wright and Siml required the
municipality to write the ballot question whereas the Home Rule Charter use only
the ballot language submitted by Petitioners.
27
was approved by the Clerk pursuant to section 8.01(1), and later approved by the
Board of county commissioners on May 17, 2016 (the latter assertion being
disputed by the County), that the Boards review as to form under Section 8.01(3)
was purely ministerial. Appx at 198.
Notably, the trial courts reading binding the Board to the Clerks
determination as to form at the earlier stage of the initiative process and ignoring
the form requirements of 101.161, Fla. Stat. recognized by the Florida Supreme
Court makes the review set forth in Section 8.01(3) redundant. That alone was
error: the trial courts interpretation renders a Charter provision mere surplusage,
in violation of the canons of statutory construction. See Gulfstream Park Racing
Ass'n, Inc. v. Tampa Bay Downs, Inc., 948 So. 2d 599, 605-06 (Fla. 2006) (If the
language pertaining to the rebroadcast of simulcast signals also refers only to
signals of live races transmitted from in-state facilities, as Gulfstream argues, this
language adds absolutely nothing to the meaning of the statute, contrary to
accepted rules of statutory construction. . . . This principle dictates that the
language . . . must be given some independent meaning and field of operation.);
Hechtman v. Nations Title Ins. of New York, 840 So. 2d 993, 996 (Fla. 2003) (It is
an elementary principle of statutory construction that significance and effect must
be given to every word, phrase, sentence, and part of the statute if possible, and
words in a statute should not be construed as mere surplusage.); Florida Dept. of
Revenue v. Florida Mun. Power Agency, 789 So. 2d 320, 324 (Fla. 2001) (A
court's function is to interpret statutes as they are written and give effect to each
word in the statute.).
28
In fact, the Boards review is not ministerial. Section 8.01(3) makes the Board
responsible for verifying the sufficiency of a petition before it is placed on a ballot
and, if a petition is insufficient, to notify the petitioners. See MIAMI-DADE
COUNTY, FLA., HOME RULE CHARTER 8.01(3)-(4) (stating that a sufficient
petition may be adopted by the Board or placed on the ballot, and the Board is
responsible for notifying petitioners of an insufficient petition). To be sufficient, a
petition must meet a number of criteria. It must have enough valid signatures, it
must be legally sufficient, it must be sufficient as to form, and it must have
followed the process in the Charter. See id. (If the number of signatures is
insufficient or the petition is deficient as to form or compliance with this Section,
the Board shall notify the person filing the petition that the petition is insufficient
and has failed.).
The charter amendment creating these requirements, which Miami-Dade voters
approved in 2002, makes clear that this review entails a review for legal
sufficiency. See Appx at 183 (providing that charter amendment ultimately
approved by Miami-Dade voters was: Shall the Charter be amended to provide
that if an initiative petition is deemed to be legally sufficient, the proposal shall be
placed on the ballot without requiring further action by the Board of County
Commissioners, unless the Board determines to adopt the proposal?) (emphasis
added); see also Fla. Hosp. Waterman, Inc. v. Buster, 984 So. 2d 478 (Fla. 2008)
(looking to ballot language to interpret the purpose of a constitutional amendment).
Importantly, the 2002 Charter amendment states that a proposal shall be placed on
the ballot without requiring further action by the Board of County
29
v. Harris, 773 So. 2d 7, 13 (Fla. 2000); Askew v. Firestone, 421 So. 2d 151 (Fla.
1982); Wadhams v. Bd. of Cty. Commrs, 567 So. 2d 414 (Fla. 1990) (the
provisions of Fla. Stat. 101.161 are mandatory, and failure to comply necessitates
the invalidation of the results of a referendum).
Specifically, Section 101.161 provides:
Whenever a public measure is submitted to the vote of the people,
a ballot summary of such amendment or other public measure shall be
printed in clear and unambiguous language on the ballot. The ballot
summary of the amendment or other public measure shall be an
explanatory statement, not exceeding 75 words in length, of the chief
purpose of the measure. The ballot title shall consist of a caption,
not exceeding 15 words in length, by which the measure is commonly
referred to or spoken of.
The requirements of 101.161, Fla. Stat. have been incorporated into the
Miami-Dade County Home Rule Charter and have been used by the Courts in
analyzing County ballot questions. See MIAMI-DADE COUNTY, FLA., HOME RULE
CHARTER 3.06(b); Matheson, 187 So. 3d at 225 (approving language of county
ballot question under 101.161(1)); Miami Heat v. Leahy, 682 So. 2d 198, 203
(Fla. 3rd DCA 1996) (applying 101.161(1) to analysis of initiatory petition
ballot language under Miami-Dade County Home Rule Charter).
In Armstrong, 773 So. 2d at 13, the Florida Supreme Court was confronted with
a ballot question proposing an amendment to the Florida Constitution telling voters
that the amendment would conform the Florida Constitution to the United States
Supreme Courts interpretation of cruel and unusual punishment, without telling
voters that the current Florida Constitution actually provided significantly more
protection prohibiting cruel or unusual punishment. By telling voters one thing,
32
while the actual amendment would do something else, the Supreme Court held:
The ballot title and summary fly under false colors and hide the ball as
to the amendment's true effect [V]oters were not told on the ballot that
the amendment will nullify the Cruel or Unusual Punishment Clause, an
integral part of the Declaration of Rights since our state's birth. Voters thus
were not permitted to cast a ballot with eyes wide open on this issue.
Id. at 21. As a result, the Court held that because the validity of the electoral
process was fundamentally compromised, . . . that proposed Amendment . . . must
be stricken. Id. In doing so, the Supreme Court gave warning to future courts
considering similarly misleading ballot questions that rejection of misleading ballot
questions was essential to ensure that each voter will cast a ballot based on the
full truth . . . [t]o function effectively and to remain viable a constitutional
democracy must require no less. Id.
Here, the ballot summary similarly hides the ball and flies under false colors. It
camouflages the actual breadth and draconian nature of the proposed campaign
finance ordinance behind innocuous and flowery ballot language that implies to
voters that the ordinance does one thing when it actually does something different.
No greater example of this deceit can be found than in the ballot questions
description of the government officers that will be covered by the proposed
campaign finance rules, which is plainly incorrect. Or in the fact that one officer in
particular the County Property Appraiser is actually relieved of all present and
proposed County campaign finance obligations. The ballot question proposed by
the initiatory Petitioners misleads voters into believing that the ordinance will have
the effect of limiting campaign contributions to $250 per election per candidate to
33
34
As discussed above, the Florida Constitution and Florida Statutes prohibit the
County from regulating the election of these non-County governmental entities.
See supra n. 7.
20
35
individuals would be prohibited from contributing to the three County Offices (but
not to the Property Appraiser) and to political committees anywhere in the Country
for any office whatsoever. In particular, the proposed ordinance requires that:
No person shall make any contribution to any candidate for County
Office or any political committee (other than a political committee
formed exclusively to accept contributions and make expenditures for
the purpose of advocating the passage or defeat of an issue) if such
person is, or, within the two-year period preceding the date of such
contribution has been, a County vendor or a Principal of a County
Vendor.
Appx at 98 (emphasis added).
Aside from casting an excessively wide net that covers too many individuals,
the proposal fails to limit the political committee ban to only County Office
elections, which means that remote Principals of County Vendors (and their
spouses and children, regardless of age) would be prohibited from contributing
towards political committees making independent expenditure to support any
candidate election in any race anywhere in the country, including presidential,
congressional, state, or judicial races. And, if they choose to knowingly contribute
to a political committee making independent expenditures to express support of a
ownership interest of five percent or more; (iii) any person with a voting interest
of five percent or more; (iv) any person who is an employee with managerial or
discretionary responsibilities with respect to the receipt or expenditure of County
funds; (v) the spouse or child of an individual described in any of the preceding
subparagraphs of this paragraph; (vi) any lobbyistwho or which is employed
by such corporation ; (7) any employee or contractor of such lobbyist engaged
in lobbying on behalf or for the benefit of the same employer; and (8) a political
committee established, maintained or controlled by any person or individual
described in any other subparagraph of this paragraph Appx at 97.
36
21
For example, under the proposed ordinance, the adult daughter of the County
contract manager at Microsoft Corporation, a County Vendor with a contract
exceeding $250,000.00, who wishes to send money to a political committee that
is using independent expenditures to expressly advocate in support of candidates
for U.S. Senate, Governor, or U.S. President would be subject to fine and
imprisonment for her expression of support for that candidate.
37
22
See also Metro. Dade Cnty. v. Lehtinen 528 So. 2d 394, 394-95 (Fla. 3d DCA
1988) (ballot question misleading in referring to technical changes in provisions
for initiatives, referenda, and recall, when there were extensive substantive
changes); accord Fla. Dept of State v. Fla. State Conference of NAACP
Branches, 43 So. 3d 662, 669 (Fla. 2010); Roberts v. Doyle, 43 So. 3d 654, 66061 (Fla. 2010).
38
39
decision not to allow this ballot question to be presented to the voters be upheld.
See Armstrong, 773 So. 2d at 21 (The purpose of this requirement is above
reproach-it is to ensure that each voter will cast a ballot based on the full truth. To
function effectively-and to remain viable-a constitutional democracy must require
no less.) (emphasis in original).
III.
40
Florida Hometown Democracy, Inc. v. Cobb, 953 So. 2d 666, 676 (Fla. 1st DCA
2007) (A law which requires a minimum word limit on ballot summaries clearly
insures ballot integrity by limiting the ballot to a workable and user friendly
length); Advisory Opinion to Attorney Gen. re Standards For Establishing
Legislative Dist. Boundaries, 2 So. 3d 175, 186 (Fla. 2009) (The ballot summaries
are currently seventy-four words in length. Hence, to add the words with the
intent to the ballot summaries would exceed the statutory word limit); Advisory
Opinion to Attorney Gen. re Protect People from the Health Hazards of SecondHand Smoke, 814 So. 2d 415, 422 (Fla. 2002) (The ballot title in the instant
proposal does not exceed fifteen words, and the ballot summary does not exceed
seventy-five words, thereby falling within statutory requirements). This is a
brightline threshold issue that the law provides no mechanism to correct. See
Mangat, 43 So. 3d at 651.
It is not for the Board of County Commissioners in the first place, and the trial
court in the second place to change the requirements of the law, or simply ignore
them, because the result may be inequitable. As this Court recently held in Wright
v. City of Miami Gardens, --- So. 3d --- 2016 WL 4376766 (Fla. 3rd DCA Aug. 17,
2016), [w]hen an unambiguous statute plainly requires a particular result
courts are powerless to fashion a different result under the auspices of fairness.
(citing Corfan Banco Asuncion Paraguay v. Ocean Bank, 715 So.2d 967, 970 (Fla.
3d DCA 1998)). Nor can the title be rewritten by the County Commission as a
result of the 2002 Home Rule Charter amendments. See supra I(D).
Accordingly, the trial courts decision to place this petition on the ballot,
41
notwithstanding the clear violations of Florida Law, was error. The trial courts
decision must be reversed, and this initiatory petition ballot language may not be
placed on any ballot.
IV.
advocating for or against an issue. See Appx at 98. Under Florida law, a political
committee is defined as:
A combination of two or more individuals. . . that, in an aggregate
amount in excess of $500 [per year]: (a) accept contributions for the
purpose of making contributions to any candidate, political
committee, affiliated party committee, or political party; (b) accepts
contributions for the purpose of expressly advocating the election or
defeat of a candidate or the passage or defeat of an issue; (c) makes
expenditures that expressly advocate the election or defeat of a a
candidate or the passage or defeat of an issue; or (d) makes
contributions to a common fund . . . from which contributions are
made to any candidate, political committee, affiliated party
committee, or political party.
106.011(16)(a), Fla. Stat. (2016).
Because the proposed ordinance only reserves the right to contribute to a
political committee that advocates for or against an issue, County Vendors and
all individuals who fall under that wide umbrella term, including spouses and
children of any age are effectively prohibited from, for example, making
expenditures that expressly advocate the election or defeat of a candidate, even if
those expenditures were not controlled by, coordinated with, or made in
consultation with any candidates political campaign. 106.011(12)(a), Fla. Stat.
(2016). In addition, according to the proposed ordinances express language, the
ban on contributions to political committees is not limited to political committees
relating to candidates for County offices. See Appx at 98 (No person shall make
any contribution toany political committee (other than a political committee
formed exclusively to accept contributions and make expenditures for the purposes
of advocating the passage or defeat of an issue).) (emphasis added). As a result,
43
44
is not the least restrictive means to further that interest. The fact that this ordinance
goes as far as banning contributions to a political committee that supports a
candidate for an office outside of Miami-Dade County makes it plainly defective
under any least restrictive means test. Furthermore, the ordinance and ballot
language purport to enact these prohibitions to address the appearance of ethical
impropriety in local government. Appx at 94. The Supreme Court has held that
this is not a valid basis to impose restrictions on independent political
expenditures. See Citizens United v. Federal Election Comn, 558 U.S. 310, 345
(2010) (noting that the Supreme Court in Buckley v. Valeo emphasized that the
independent expenditure ceiling ... fails to serve any substantial governmental
interest in stemming the reality or appearance of corruption in the electoral
process, because [t]he absence of prearrangement and coordination ... alleviates
the danger that expenditures will be given as a quid pro quo for improper
commitments from the candidate). And the ordinance is also not saved by the fact
that individuals can still expressly advocate for a candidate if they elect to do so
individually and not by pooling resources with other like-minded individuals. In
Citizens United, the Supreme Court specifically rejected a prior precedent that had
allowed political speech to be regulated based on preventing the corrosive and
distorting effects of immense aggregations of wealth that are accumulated with the
help of the corporate form. Citizens United, 558 U.S. 348, 363. Therefore, the
proposed ordinance, which, among other things, would impose the type of overly
broad ban on independent political expenditures that the Supreme Court found to
serve no compelling interest, is unconstitutional.
45
V. The Trial Court Order Ignored the Charter Requirement that Made this
Petition not Timely for the November 2016 General Election Ballot
Whether the ballot language is illegal, the initiatory petition is unconstitutional,
or the County Commission has the authority under the Home Rule Charter to
declare the initiatory petition legally insufficient, the Home Rule Charter still
provides a process for the placement of an initiatory petition on a county-wide
election. And the trial court wholly ignored that Charter-mandated process.
Under the express terms of the Home Rule Charter, a sufficient petition is
placed on the next available countywide election once the process outlined in the
Charter is completed without further action of the Board. MIAMI-DADE COUNTY,
FLA., HOME RULE CHARTER 8.01(4). Prior to the placement without further action
of the Board, the Charter requires that the Board have a 30-day period within
which to adopt an initiatory ordinance after that ordinance: has been determined to
be sufficient as to form, in compliance with 8.01 of the Charter; has a sufficient
number of canvassed signatures; and is otherwise legally sufficient. See id. (The
Board may within 30 days after the date a sufficient petition is presented adopt the
ordinance as submitted in an initiatory petition.). It is only after the expiration
of this 30-day period that a petition would get placed on the next available
countywide election. See id. (If the Board does not adopt or repeal the ordinance
as provided above, then the proposal shall be placed on the ballot without further
action of the Board.).
The Charter provides the Board no authority to waive or truncate the 30-day
period that must expire prior to the petition being placed for countywide election.
In fact, municipalities have been rebuked when they have ignored relevant Charter
46
timelines to place a ballot question ahead of schedule. See City of Miami Beach v.
Herman, 346 So. 2d 122, 123-24 (Fla. 3d DCA 1977) (Section 26 of the City's
Charter clearly provides a minimum 60-day period between certification of the
petitions and the date of the election. This requirement was not met and the trial
judge was correct in enjoining the City from placing the subject rent control
measure on the March 8 ballot.); City of Miami v. Rolle, 446 So. 2d 1134 (Fla. 3d
DCA 1984) ([T]he time frame required by the Dade County Home Rule Charter,
Article 5, Section 5.03, for the placing of a City Charter Amendment on the ballot
for its citizens has not been complied with by the CITY OF MIAMIand
therefore was not submitted to the electors timely.); Nunez v. City of Hialeah, 477
So. 2d 655 (Fla. 3d DCA 1985) (The order under review is reversed and the cause
remanded with directions to enjoin the scheduled election on a proposed City of
Hialeah charter amendment,becausethe city did not comply with the time
frame required by 5.03A of the Dade County Home Rule Charter.).
As explained below, federal law mandates that voting begins for the November
8, 2016 election on September 24, 2016. Because the Boards 30-day period will
not have expired by that date, the next available election for this petition is the
county-wide election scheduled for August 2018. The trial court may not
mandamus the County to violate the Charter-mandated timing provisions simply
because Petitioners prefer the November election.
VI.
As this Court affirmed in granting the Countys Motion to Expedite, the trial
courts direction to place this matter on the November 8, 2016 General Election
47
24
See Reform Party of Fla. v. Black, 885 So. 2d 303, 306 (Fla. 2004) ([S]ecretary
Hood filed a notice of appealthereby invoking the automatic stay provision for
public bodies and public officers under Florida Rule of Appellate Procedure
9.310(b)(2). This automatically stayed the circuit court's temporary injunction
prohibiting the Secretary of State from certifying the names of Nader and Camejo
for inclusion on the 2004 Florida presidential ballot.") (footnote omitted).
48
ballot no later than 45 days before each . . . general election to each requesting
absent military or overseas voter); 52 U.S.C. 20302 (requiring all states to
transmit absentee ballots to uniformed military and overseas voters not later than
45 days before the election). To accomplish this, the Supervisor of Elections must
have a completed, finalized, and tested ballot sent to the printers by September 17,
2016 a mere 5 days away. Appx at 187-191 (White Aff. 12).
As such, the County is grateful to the Court for granting expedited
consideration and respectfully requests a quick resolution on this matter, to provide
clarity to the election. The County notes that the potential for disruption of the
orderly process of the preparation of the November 8, 2016 election ballot
increases with every day and every hour that passes from the morning of
September 8, 2016. Id. 14. Any Court order to the Supervisor of Elections to
restart the ballot preparation process to include this initiatory ordinance on the
November 8, 2016 General Election ballot may significantly harm the accuracy
and reliability of the entire election and affect not just the initiatory petition
measure, but every other race appearing on the same ballot depending on when an
order in this case is received and any appellate remedies exhausted. Id. at 18. By
contrast, as noted above, even if Appellees are correct that neither the ballot
question nor the underlying proposed ordinance are invalid, the ballot question
must still be placed on the August 2018 Primary Election, an election where the
preparation will not even start for over eighteen months.
To avoid any unnecessary interruption or risk in the November 8, 2016 General
Election, this Court should either reverse the trial court and vacate the mandamus
49
Respectfully submitted,
ABIGAIL PRICE-WILLIAMS
MIAMI-DADE COUNTY ATTORNEY
By: /s/ Oren Rosenthal and Michael Valdes
Oren Rosenthal and Michael B. Valdes
Assistant County Attorneys
Florida Bar Nos. 86320 & 93129
Miami-Dade County Attorneys Office
50
51
CERTIFICATE OF SERVICE
Undersigned counsel certifies that a true and correct copy of the foregoing
Initial Brief was served by e-mail on September 12, 2016 to:
Benedict P. Kuehne
Law Office of Benedict P. Kuehne, P.A.
100 S.E. 2nd Street, Suite 3550
Miami, FL 33131
E-mail: ben.kuehne@kuehnelaw.com; efiling@kuehnelaw.com
Joseph E. Sandler
Sandler, Reiff, Lamb, Rosenstein & Birkenstock PC
1025 Vermont Ave., N.W. Suite 300
Washington, D.C. 20005
E-mail: sandler@sandlerreiff.com
Joseph Geller
Greenspoon Marder, P.A.
200 E. Broward Blvd., Suite 1800
Fort Lauderdale, Florida 33301
E-mail: joseph.geller@gmlaw.com
/s/ Oren Rosenthal
Assistant County Attorney
Miami-Dade County Attorneys Office
CERTIFICATE OF COMPLIANCE
Undersigned counsel certifies that this brief complies with the font
requirements in Fla. R. App. P. 9.210.
/s/ Oren Rosenthal
Assistant County Attorney
Miami-Dade County Attorneys Office
52