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IN THE DISTRICT COURT OF APPEAL

OF FLORIDA, THIRD DISTRICT


Case No. 3D16-2090
L.T. Case No. 16-20844 CA 01

MIAMI-DADE COUNTY BOARD OF


COUNTY COMMISSIONERS, et al.,
Appellants/Respondents,
v.
AN ACCOUNTABLE MIAMI-DADE, et al.,
Appellees/ Petitioners.

Initial Brief of Appellants/Respondents

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)

Advisory Opinion to Attorney Gen. re Protect People from the Health


Hazards of Second-Hand Smoke, 814 So. 2d 415 (Fla. 2002) ............................. 41
Advisory Opinion to Attorney Gen. re Standards For Establishing
Legislative Dist. Boundaries, 2 So. 3d 175 (Fla. 2009) ....................................... 41
Advisory Opinion to the Attorney Gen. re Tax Limitation,
644 So. 2d 486 (Fla. 1994) ................................................................................... 39
Alabama Democratic Conference v. Broussard,
541 F. Appx 931 (11th Cir. 2013)....................................................................... 44
Armstrong v. Harris,
773 So. 2d 7 (Fla. 2000) .................................................................... 32, 33, 38, 40
Askew v. Firestone,
421 So. 2d 151 (Fla. 1982) ................................................................................... 32
Atkins v. State ex rel. Shelton,
187 So. 363 (1939) ............................................................................................... 19
Atlantic Shores Resort, LLC v. 507 South Street Corp.,
937 So. 2d 1239 (Fla. 3d DCA 2006) .................................................................. 23
Bd. of Comm'rs for Lee Cty. v. Royal Pelican Dev., Inc.,
614 So. 2d 1164 (Fla. 2d DCA 1993) .................................................................. 21
Borden v. East-European Ins. Co.,
921 So. 2d 587 (Fla. 2006) ................................................................................... 15
Browning v. Young,
993 So. 2d 64 (Fla. 1st DCA 2008) ...................................................................... 15
Buckley v. Valeo,
424 U.S. 1 (1976) .......................................................................................... 44, 45

iii

TABLE OF CITATIONS
Cases

Pages(s)

Citizens United v. Federal Election Comn,


558 U.S. 310 (2010) ...................................................................................... 45, 46
City of Boca Raton v. Siml,
96 So. 3d 1140 (Fla. 4th DCA 2012) ............................................................ 25, 27
City of Coral Gables v. State ex rel. Worley,
44 So. 2d 298 (Fla. 1950) ..................................................................................... 16
City of Miami Beach v. Herman,
346 So. 2d 122 (Fla. 3d DCA 1977) .................................................................... 47
City of Miami Beach v. Smith,
251 So. 2d 290 (Fla. 3d DCA 1971) .................................................................... 25
City of Miami v. Rolle,
446 So. 2d 1134 (Fla. 3d DCA 1984) .................................................................. 47
City of Miami v. Staats,
919 So. 2d 485 (Fla. 3d DCA 2005) ............................................................. 38, 39
Colo. Republican Fed. Campaign Comm. v. Federal Election Comn,
518 U.S. 604 (1996) ............................................................................................. 44
Conner v. Mid-Florida Growers, Inc.,
541 So. 2d 1252 (Fla. 2d DCA 1989) ........................................................... 18, 19
Corfan Banco Asuncion Paraguay v. Ocean Bank,
715 So. 2d 967 (Fla. 3d DCA 1998) .................................................................... 42
County of Orange v. Webster,
546 So. 2d 1033 (Fla. 1986) ................................................................................. 2
Diamond Aircraft Industries, Inc. v. Horowitch,
107 So. 3d 362 (Fla. 2013) ................................................................................... 15

iv

TABLE OF CITATIONS
Cases

Pages(s)

Donovan v. Okaloosa County,


82 So. 3d 801 (Fla. 2012) ..................................................................................... 23
Dulaney v. City of Miami Beach,
96 So. 2d 550 (Fla. 3d DCA 1957) ...................................................................... 25
Eichelberger v. Brueckheimer,
613 So. 2d 1372 (Fla. 3d DCA 1993) .................................................................. 16
Evans v. Firestone,
457 So. 2d 1351 (Fla. 1984) ................................................................................. 39
Fishman v. Schaffer,
429 U.S. 1325 (1976) ........................................................................................... 50
Fla. Dept of Revenue v. Fla. Mun. Power Agency,
789 So. 2d 320 (Fla. 2001) ................................................................................... 29
Fla. Dept of State v. Fla. State Conference of NAACP Branches,
43 So. 3d 662 (Fla. 2010) ..................................................................................... 38
Fla. Dept of State v. Mangat,
43 So. 3d 642 (Fla. 2010) .............................................................................. 24, 41
Fla. Hosp. Waterman, Inc. v. Buster,
984 So. 2d 478 (Fla. 2008) ................................................................................... 30
Fla. League of Cities v. Smith,
607 So. 2d 397 (Fla. 1992) ............................................................................ 16, 20
Florida Hometown Democracy, Inc. v. Cobb,
953 So. 2d 666 (Fla. 1st DCA 2007) .................................................................... 41
Gilliam v. State,
996 So. 2d 956 (Fla. 2d DCA 2008) .................................................................... 17

TABLE OF CITATIONS
Cases

Pages(s)

Gulfstream Park Racing Ass'n, Inc. v. Tampa Bay Downs, Inc.,


948 So. 2d 599 (Fla. 2006) ................................................................................... 28
Hatten v. State,
561 So. 2d 562 (Fla. 1990) ................................................................................... 16
Hechtman v. Nations Title Ins. of New York,
840 So. 2d 993 (Fla. 2003) ................................................................................... 28
Holcomb v. Dept of Corrs.,
609 So. 2d 751 (Fla. 1st DCA 1992) .................................................................... 16
Let Miami Beach Decide v. City of Miami Beach,
120 So. 3d 1282 (Fla. 3d DCA 2013) .................................................................. 38
Matheson v. Miami-Dade County,
187 So. 3d 221 (Fla. 3rd DCA 2015) ............................................................. 6, 32
McCutcheon v. Federal Election Comn,
134 S.Ct. 1434 (2014) .......................................................................................... 45
Metro. Dade Cnty. v. Lehtinen
528 So. 2d 394 (Fla. 3d DCA 1988) .................................................................... 38
Miami Heat v. Leahy,
682 So. 2d 198 (Fla. 3rd DCA 1996) ................................................................... 32
Miami-Dade County v. Church & Tower, Inc.,
715 So. 2d 1084 (Fla. 3d DCA 1998) .................................................................. 23
Miami-Dade Cnty. v. Village of Pinecrest,
994 So. 2d 456 (Fla. 3d DCA 2008) ............................................................. 38, 39
Morse Diesel Intl, Inc. v. 2000 Island Blvd., Inc.,
698 So. 2d 309 (Fla. 3d DCA 1997) ....................................................... 15, 18, 26

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)

State ex rel. Robertson v. Gessner,


16 So. 2d 51 (Fla. 1943) ....................................................................................... 17
Southlake Property Assocs., Ltd. v. City of Morrow,
112 F.3d 1114, 1119 (11th Cir. 1997) .................................................................. 23
Times Pub. Co., Inc. v. City of St. Petersburg,
558 So. 2d 487 (Fla. 2d DCA 1990) .................................................................... 20
Wadhams v. Board of County Commissioners,
567 So. 2d 414 (Fla. 1990) ................................................................................... 32
Wilson v. Dade County,
369 So. 2d 1002 (Fla. 3d DCA 1979) .................................................................. 25
Wright v. City of Miami Gardens,
--- So. 3d ---, 2016 WL 4376766 (Fla. 3rd DCA August 17, 2016) .................... 42
Wright v. Frankel,
965 So. 2d 365 (Fla. 4th DCA 2007) ................................................................... 27
Statutory Authorities

Pages(s)

1001.361, Fla. Stat. .......................................................................................... 4, 43


101.161, Fla. Stat. ........................................................................................ passim
106.28, Fla. Stat. ................................................................................................... 4
582.10, Fla. Stat. ................................................................................................... 4
106.011, Fla. Stat. .......................................................................................... 43, 44
52 U.S.C. 20302 ................................................................................................... 49
Art. IX, 4(a), Fla. Const. ........................................................................................ 4

viii

TABLE OF CITATIONS
Cases

Pages(s)

Art. VIII, 11(1)(i), Fla. Const. (1885) ................................................................... 42


Art. VIII, 6(e), Fla. Const. ................................................................................ 4, 42
Art. XI, 5, Fla. Const............................................................................................. 32
CITY OF WEST PALM BEACH, FLA., CHARTER 6.09 ............................................... 1
Fla. R. App. P. 9.310 ........................................................................................ 13, 48
Fla. R. Civ. P. 1.630 ......................................................................................... 11, 17
Merriam-Webster Dictionary (2016) ...................................................................... 30
MIAMI-DADE COUNTY, FLA., CODE 2-1, Rule 3.02(A) .......................................... 8
MIAMI-DADE COUNTY, FLA., CODE 2-8.1.1.1.1.................................................... 36
MIAMI-DADE COUNTY, FLA., CODE 12-23......................................................... 2, 9
MIAMI-DADE COUNTY, FLA., HOME RULE CHARTER 3.03 .................................... 4
MIAMI-DADE COUNTY, FLA., HOME RULE CHARTER 3.06 ............................... 5, 32
MIAMI-DADE COUNTY, FLA., HOME RULE CHARTER 8.01 ........................... passim

ix

STATEMENT OF THE CASE AND FACTS


Appellants, Miami-Dade County Board of County Commissioners (the Board
or County Commission), Carlos Gimenez, solely in his official capacity as
Mayor of Miami-Dade County, and Christina White, solely in her official capacity
as Miami-Dade County Supervisor of Elections (collectively, Miami-Dade
County or the County), appeal the grant of a writ of mandamus that compels
Miami-Dade County to add on to the November 8, 2016 General Election ballot an
illegal and misleading question submitted by Petitioners through the initiative
process a ballot question that the County Commission, in accordance with its
responsibility under the Miami-Dade County Home Rule Charter, had deemed
legally insufficient and deficient as to form.
Section 8.01 of the Miami-Dade County Home Rule Charter lays out a clearlydefined, sequential process for initiatory petitions. First, [t]he person proposing
the [initiatory petition] shall submit the proposal, including proposed ballot
language1 to the Clerk of the Circuit Court who shall . . . approve as to form a
petition for circulation. MIAMI-DADE COUNTY, FLA., HOME RULE CHARTER
8.01(1). Second, [a] public hearing shall be held on the proposal at the next
Board of County Commissioner [sic] meeting [after] the Clerk approves the
petition as to form. Id. Third, the petitioners have 120 days from the Clerks
1

In this respect, Miami-Dade Countys initiative petition process differs from


other counties and municipalities. Compare, e.g., CITY OF WEST PALM BEACH,
FLA., CHARTER 6.09 (requiring that ballot language for an initiatory ordinance
be prepared by the city attorney) with MIAMI-DADE COUNTY, FLA., HOME RULE
CHARTER 8.01(1) (requiring petitioners to submit their proposal including
proposed ballot language).

approval as to form to obtain the signatures of at least 4 percent of the registered


voters in Miami-Dade County, with no more than 25 percent of the required
signatures coming from any one County Commission district. See id. at 8.01(2).
Fourth, after the petitioners submit their signed petitions, the County Commission
has 30 days to order a canvass of the signatures thereon to determine the
sufficiency of the signatures. Id. at 8.01(3). Fifth, the Supervisor of Elections
has 30 days (excluding weekends and legal holidays) after the canvass has been
ordered to initially canvass the petitions for various defects as to form, and a
reasonable time thereafter to canvass the petitions for defects relating to the
signatures. See MIAMI-DADE COUNTY, FLA., CODE 12-23(3)-(4). Sixth, the Board
must verify the sufficiency of a petition before it is placed on a ballot, and, if the
number of signatures is insufficient or the petition is deficient as to form2 or
compliance with [] Section [8.01], the Board shall notify the person filing the
petition that the petition is insufficient and has failed. See MIAMI-DADE COUNTY,
FLA., HOME RULE CHARTER 8.01(3)-(4).3 Seventh, if the Board determines that
the petition is sufficient, it may within 30 days after the date a sufficient petition
is presented adopt the ordinance as submitted. Lastly, if the 30 days have expired
2

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).

In 2002, the voters of Miami-Dade County amended the initiatory petition


process by approving the following ballot question: 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 any further action by
the Board of County Commissioners . . . ? Appx at 183 (emphasis added).

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

Summary: Should an ordinance be enacted addressing the appearance of


ethical impropriety in county government; limiting campaign
contributions to $250 per election per candidate to candidates
for County offices; prohibiting large county contractors from
making campaign contributions; amending the election
campaign financing trust fund; repealing prior ordinances and
resolutions in conflict; amending definition of gift; providing
severability, code inclusion, and an effective date?
Id. at 93-94.
But the actual effect of the petitions proposed ordinance both contradicts and

Under the Charter, a special election can be triggered if a petition is signed by at


least 8 percent of the registered voters in the County. See id. at 8.01(5)(b).

Citations to the Appendix refer to the pagination at the top-right corner.

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

The proposed ordinance explicitly excludes political parties. See Appx at 97


(except that such term shall not include a political party). Under the
proposed ordinance, political parties would be able to donate up to $50,000 to
non-partisan County officers, or two-hundred times the amount an individual
elector would be entitled to donate. See MIAMI-DADE COUNTY, FLA. HOME RULE
CHARTER 3.03 (requiring County offices to run in non-partisan elections);
106.28(2)(a), Fla. Stat. (2016) (allowing political parties to donate up to $50,000
to any candidate for county office). This would interject partisan considerations
into what the Home Rule Charter requires to be non-partisan races.

The Miami-Dade County School Board is a separate governmental entity created


pursuant to Art. IX, 4(a), Fla. Const., and is not subject to regulation by the
Home Rule Charter or County ordinances. See Art. VIII, 6(e), n. 3 11(1)(c),(f),
Fla. Const. Additionally, School Board elections are governed by state law and
preempted from local regulation. See 1001.361, Fla. Stat. (2016). Similarly,
Conservation Districts are political subdivisions of the State of Florida and
created pursuant to state law, not County Code. See 582.10, Fla. Stat. (2016).

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

MIAMI-DADE COUNTY, FLA., HOME RULE CHARTER 3.06 incorporates the


provisions of the election laws of this state into all County elections held
pursuant to the Charter. This includes the requirements for word count and
language of ballot questions set forth in 101.161, Fla. Stat. (2016). See
Matheson v. Miami-Dade County, 187 So. 3d 221, 225 (Fla. 3d DCA 2015)
(holding that county ballot questions must comply with 101.161(1)).

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

Notwithstanding the publicized, advance notice that Petitioners had of the


Boards summer recess period, the Chairman of the County Commission circulated
a call for a special meeting of the Board within days after the Petitioners submitted
their petitions to the Clerk of the Board. See Appx at 153; MIAMI-DADE COUNTY,
FLA., CODE 2-1, Rule 3.02(a) (outlining procedure for calling special meetings of
the Board). A first attempt to schedule a special meeting on short notice for August
9, 2016 ultimately failed to obtain a quorum. See id. at 153-159. However, the
Chairman of the County Commission then undertook a second effort to call for a
special recess meeting on the initiatory petition. See id. at 161. That notice was
signed by a majority of the County Commissioners, and the meeting was held on
August 22, 2016. See id.
At the August 22, 2016 special meeting, the County Attorneys Office advised
the Board that, under the Home Rule Charter, the Board was responsible for
verifying the sufficiency of the petition and that, based on the review by the
County Attorneys Office, the petition was deficient as to form and was not legally
sufficient. See id. at 17-18. During the Boards deliberations, Petitioners counsel
conceded, I understand that there may be some legal questions about sufficiency,
and represented to the Board that the Petitioners were willing to have the Board
address the legal sufficiency of the petition at a later point in time. See Video of
Aug

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

To show the Countys extraordinary efforts to accommodate Petitioners belated


petition filing: if the Supervisor of Elections had been entitled to use all of the
time provided for under MIAMI-DADE COUNTY, FLA., CODE 12-23, then she
would have had until October 4, 2016 for her review just as to the defects in
form. And the Code would have provided her additional time thereafter to
complete her canvass as to any defects in the petition signatures.

12

Although the memorandum indicates an initial estimated cost of $900,000, the


Countys Budget Director clarified at a budget meeting that the actual cost was
slightly over $400,000.

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

merits of the Mandamus Petition.14


The next day, the trial court issued an Order Granting Petitioners First
Amended Petition for Writ of Mandamus (Order). See Appx at 192-200. The
Order found that there is no legitimate issue as to the propriety of the form of the
initiative petition and directed the County to begin the process of placing the
Campaign Finance Reform Initiative on the November 8, 2016 ballot,
notwithstanding the County having informed the trial court that (1) necessary
prerequisites for placement on the ballot had not yet been completed and (2) the
Supervisor of Elections had serious concerns shared by the States Division of
Elections as to the impact these last minute changes would have on the County
Department of Elections ability to prepare the November 2016 General Election
ballot. Id. at 198, 200.
Miami-Dade County immediately filed an emergency notice of appeal and a
motion for expedited review and consideration, in light of the public importance
and time-sensitive nature of this case.15 The Countys motion also noted that,
14

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

pursuant to Fla. R. App. P. 9.310(b)(2), it is entitled to an automatic stay of the


writ upon the filing of the Notice of Appeal. Shortly thereafter, this Court granted
the motion as stated in the motion. As a result, the writ issued by the trial court is
stayed and the Supervisor of Elections is currently preparing the November 8, 2016
Presidential Election Ballot without the initiatory petition and will continue to do
so pending further direction of this Court.
SUMMARY OF THE ARGUMENT
Both the County Commission and the trial court were confronted by an
initiatory petition with sufficient signatures to be placed on the ballot but the ballot
language and proposed ordinance clearly violated the law. The County
Commission correctly found the petition insufficient as to form and legally
insufficient. The trial court did not.
In refusing to dismiss the Mandamus Petition, the trial courts Order violates at
least the following procedural and substantive laws governing the writ of
mandamus and the placement of initiatory petitions on a ballot: the procedure for
the issuance of a writ of mandamus; the standards for the issuance of a writ of
mandamus; the requirements for the form of ballot language under Florida; the
limitations related to campaign finance regulations and county powers under the
United States and Florida Constitutions; and the express initiative requirements of
the Miami-Dade County Home Rule Charter. Below, the trial court did not
properly analyze whether the Petitioners had a clear legal right they do not or
whether the County owed Petitioners a purely ministerial duty to place legally

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

intended to accomplish the limited function of compelling officials to perform


lawful duties and not to redress every grievance or disagreement. See Eichelberger
v. Brueckheimer, 613 So. 2d 1372 (Fla. 3d DCA 1993); City of Coral Gables v.
State ex rel. Worley, 44 So. 2d 298, 300 (Fla. 1950) (It is well established that
mandamus is . . . not used to enforce or determine equitable rights.).
Thus, the requirements for the issuance of a writ of mandamus are:
1. The petitioner must show a clear legal right to the performance of
a legal duty by a public officer;
2. There must be an indisputable legal duty to perform on the part of
the public officer; and
3. There must be no other adequate legal remedy available to the
petitioner.
Hatten v. State, 561 So. 2d 562 (Fla. 1990) (emphasis added); Holcomb v. Dept of
Corrs., 609 So. 2d 751 (Fla. 1st DCA 1992). The trial court failed in its application
of these requirements to the facts of this case.
A. The Trial Court Failed to Follow the Procedural Requirements
Under Florida Law for Issuing a Writ of Mandamus
Petitioners filed their Mandamus Petition on Friday, September 2, 2016, which
claimed that they were entitled to have their initiatory petition placed on the
November 2016 General Election Ballot or have the Board adopt it as written. See
Appx at 13-14. But, at that time, the Supervisor of Elections was still in midst of
canvassing the initiatory petition and the Board had not yet met to determine the
sufficiency of the initiatory petition. Those events would not occur until September
6 and September 7, respectively. As such, Petitioners claims were entirely based
on information and belief for events that had not yet occurred. See id. at 25. Thus,

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

requires that a reasonable time be given to file a return to an alternative writ of


mandamus, and we do not believe that the appellant herein was given a reasonable
time); Conner v. Mid-Florida Growers, Inc., 541 So. 2d 1252, 1256 (Fla. 2d DCA
1989) (The respondent has the right to plead to the alternative writ and will be
prejudiced by the failure to allow a reasonable time within which to do so.).
Indeed, the Second District reversed a writ of mandamus issued after the same
procedural deviations the trial court undertook here namely, skipping the
alternative writ and proceeding directly to hear the petition on the merits. The
Second District specifically rejected the argument that the respondent was not
prejudiced by the maneuver, even though, unlike here, there had already been
prolonged litigation and the respondent should have been fully aware that drastic
action such as a proceeding in mandamus could be expected. Conner, 541 So. 2d
at 1257. Nevertheless, the Court held, There is no requirement that the respondent
in a mandamus action assume anything in advance of the trial court's preliminary
determination that the complaint is facially sufficient. Id. at 1256. It is fatal to the
writ that the trial court made no such preliminary determination here.
The trial court justified its actions in this case by stating that [t]he parties agree
that an immediate ruling from the Court is essential to the proper administration of
justice. Appx at 200. But the County actually said the exact opposite. In fact, the
County characterized the Mandamus Petition as an attempt to rush [the trial court]
into a poor decision to place this matter on the November ballot regardless of the
legal consequences and asked that the Motion to Expedite be denied so that there
is sufficient time to review this matter with the attention it deserves. Id. at 65-

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

2002 Charter amendment that an initiatory petition should be presented to the


voters only if [it] is deemed to be legally sufficient, which is the precise analysis
that the Board undertook in this case. Id. at 183.
The trial courts Order is premised upon all of these disputed matters. Given
those clear disputes, mandamus should have never been issued, and this Court
should reverse the trial courts Order. See Bd. of Comm'rs for Lee Cty. v. Royal
Pelican Dev., Inc., 614 So. 2d 1164, 1167 (Fla. 2d DCA 1993) (Because the
record discloses an issue of factwithin the statutory schemewe reverse and
vacate the peremptory writ.).
C. The Trial Court Failed to Afford Any Deference to MiamiDade Countys Interpretation of its Own Charter
In reaching its decision, the trial court was required to interpret provisions of
the Miami-Dade County Home Rule Charter, principally Section 8.01. Below, the
County argued that Petitioners suggested interpretation lacked support based upon
the plain reading of the text, rendered various portions of the Charter irrelevant,
contradicted itself at various times, created a wholly unworkable process, and ran
contrary to the applicable legislative history. Nevertheless, the trial court issued its
Order, which ignored and offered no analysis as to various substantive issues of
interpretation that the County raised. See generally Appx at 192-200.
For example, the trial courts Order is wholly devoid of any analysis as to how
to interpret the provision of the Charter that reads: The Board may within 30 days
after the date a sufficient petition is presented adopt the ordinance as submitted . . .
If the Board does not adopt . . . the ordinance as provided above, then the proposal

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

Petitioners interpretation creates considerable practical challenges. For instance,


what would happen if the Board adopts an ordinance under Petitioners
interpretation and the results of the canvass subsequently reveal that the petition
did not collect enough valid signatures? Because the Board can only adopt a
sufficient petition, would the ordinance be automatically repealed, and what
language in the Charter provides for such a procedure?

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

Petitioners failed to demonstrate an entitlement to have their ballot question placed


on the November 2016 ballot, which would be unavailable by the time the petition
would be entitled to placement on a ballot, even if it had been legally sufficient.
Petitioners have only themselves to blame for their decisions as to the timing of
their submissions given the reasonable time periods required for subsequent
procedures outlined in the Home Rule Charter to occur. See Appx at 81-83.
Petitioners and the trial courts failure to show a clear legal right begins with
the ballot title. As the trial court itself held, the ballot title which contains 16
words clearly violates Florida law limiting all initiative ballot titles to 15 words.
See Appx at 197 (citing 101.161(1), Fla. Stat.). But the court nonetheless
determined that this obvious statutory violation provides no rational basis to
defeat the proposed initiative. Id. Curiously, the court further expounded on how
easy it would be to correct the oversight, id., without determining who or what
entity had the authority to make that correction. Certainly, it could not be the
County Commission: the Charter gives the Board only the authority to act on the
petition as submitted and not to rewrite the ballot language to cure deficiencies.
See MIAMI-DADE COUNTY, FLA., HOME RULE CHARTER 8.01; Fla. Dept. of State
v. Mangat, 43 So. 3d 642, 651 (Fla. 2010) (holding that the only recourse to an
illegal ballot question is to strike [it] from the ballot, thereby removing it from a
vote of the electorate). Neither Petitioners nor the trial court explained how
Petitioners had a clear legal right to have their indisputably invalid ballot title
revised to satisfy Florida law. And that is but the first and most obvious of the
initiative petitions legal defects. The rest are explained in greater detail below.

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

of Boca Raton v. Siml, 96 So. 3d 1140 (Fla. 4th DCA 2012).


First, Siml did not address whether the municipalitys obligation to process the
initiative petition was ministerial; indeed, it appears that that petition was at a very
early stage, because the issue stemmed from the City Attorneys opinion that the
amendment should not be processed. Siml, 96 So. 2d at 1141. The focus of Siml
was on the constitutionality of the ordinance, not the ministeriality of the duty.
Thus, Siml, which assumed without discussion the existence of a ministerial duty
and which furthermore does not even specify the governing initiative petition
process cannot demonstrate that the County Commission, operating under a
unique Charter process, had a ministerial duty here.
Wright is similarly unavailing. In fact, the trial court recognized that Wright is
distinguishable, as the trial court explicitly noted, Unlike Miami-Dade's charter,
Palm Beach's charter clearly indicates that the legal duty of the named officials
regarding initiative petitions is purely ministerial. Appx at 194 (emphasis
added).18
Based on this inapposite case law and the trial courts faulty reading of the
MIAMI-DADE COUNTY, FLA., HOME RULE CHARTER 8.01, the trial court
improperly held that the County Commission had a ministerial duty to place the
ballot question on the November 2016 ballot. Indeed, without explanation or
support, the trial court simply assumed that, [b]ecause the initiative petition form
18

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

Commissioners . . . Id. (emphasis added). The use of the word further


necessarily presupposes an antecedent action taken by the Board Id.; see MerriamWebster Dictionary, further (adj.) (2016) (going or extending beyond:
additional). And, the only action previously described in the 2002 Charter
amendment is deeming the petition to be legally sufficient. Appx at 183. Thus,
when the voters of Miami-Dade County elected to amend their Home Rule Charter
in 2002, they intended to preserve a critical backstop so that legally deficient
petitions would not be presented to them. While the Board could take no action to
stop a legally sufficient initiatory petition, it was obligated to take action to stop an
insufficient one a duty the Board fulfilled in this case.
Because the County Commission did not have a ministerial duty to simply
transmit the initiative petition for placement on the ballot, Petitioners were not
entitled to mandamus. The trial courts order must be reversed.
II. The Ballot Language is Illegal Under Florida Law Because It Misleads
Voters and Prevents Them From Casting an Intelligent and Informed
Ballot
The initiatory petitions ballot language is fatally flawed because it: misleads
the voting public as to what they are voting for; does not accurately describe the
initiatory ordinance Petitioners seek to adopt; and fails to comply with the express
requirements of Florida law regarding the creation of the ballot language. Placing
this initiatory petition on the November 8, 2016 General Election ballot will not
serve the principles of democracy, as voters confronted with this ballot language
will be affirmatively misled and incapable of casting an intelligent and informed
ballot for the campaign finance provisions actually proposed by the ordinance.
30

As previously explained, under the unique Miami-Dade Home Rule Charter


provisions, the petitioner is solely responsible for creating a legal ballot question,
and once signatures have been gathered, the ballot language may not be changed
by the Petitioners, the County Commission, or the Court. Nevertheless, the Order
below directs the County to place the following ballot summary on the ballot:
Should an ordinance be enacted addressing the appearance of ethical
impropriety in county government; limiting campaign contributions to
$250 per election per candidate to candidates for County officer;
prohibiting large county contractors from making campaign
contributions; amending the election campaign financing trust fund;
repealing prior ordinances and resolutions in conflict; amending
definition of gift; providing severability, code inclusion, and an
effective date?
This ballot language prevents voters from truly casting a valid vote for the
proposed ordinance because it: (1) misleads the voters as to the elected officers
covered by the proposed ordinance; (2) misleads the voters as to whose campaign
contributions and other electoral activities are restricted by the proposed ordinance;
and (3) improperly interjects political rhetoric into the ballot box, in contravention
of Florida law.
Under Florida Law, which is imposed on all referenda ballots including those
raised by initiatory petitions by Art. XI, 5, Fla. Const. and 101.161, Fla. Stat.,
a ballot question must: (1) contain a ballot title of no greater than 15 words;
(2) contain a ballot question of 75 words or less; and (3) describe the chief
purpose of the measure to provide the voter fair notice of the content of the
proposal so that the voter will not be misled as to its purpose, and can cast an
intelligent and informed ballot. 101.161(1), Fla. Stat.; see also, e.g., Armstrong
31

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

candidates for County Offices. (emphasis added). This proposed ordinance,


however, actually exempts the County Property Appraiser a County office from
both the new campaign finance regulations and the already existing campaign
finance regulations and adds both the Members of the School Board and Members
of the Board of Supervisors of a Soil & Water Conservation District neither of
which are County offices. See Appx at 97-98. Specifically, the amendment to
Miami-Dade County Code Section 12-5(3) in the proposed ordinance provides that
the following should be added:
County Office means the Office of the Mayor of Miami-Dade
County, Member of the Miami-Dade County Board of County
Commissioners, Member of the Board of Supervisors of a Soil &
Water Conservation District, Member of the School Board, and
Member of Miami-Dade County Community Councils.
Id. at 97.
At the same time, the pre-existing language regulating County offices is
proposed to be amended as follows:
(b) Except as otherwise provided by the Home Rule Charter, by this
section, by other sections of this Chapter or by other ordinance
adopted by the Commission, the provisions of the election laws of the
State of Florida regarding campaign contributions and expenditures
shall apply to elections for County Officer. the Office of Mayor of
Miami-Dade County, Miami-Dade County Board of County
Commissioners, Property Appraiser of Miami-Dade County and
Miami-Dade County Community Councils.
Id. at 97-98 (annotation in original).
The net result of these changes would be to include two non-County Offices
under the new regulations and to exclude one County Office from all County

34

regulations. The ballot questions description of County Offices is simply wrong


and implies that it does something that it does not and, in the case of the School
Board and Conservation District, could never do.19 Allowing this ballot to go to the
voters will prevent them from casting an intelligent, informed vote.
Additionally, the ballot question also states that it is prohibiting large county
contractors from making political contributions. This is also misleading, as the
dollar amounts involved in the actual ordinance are for any contractor with a
$250,000 county contract. See id. at 97 (applying proposed ban to a party to a
Contract under which the consideration to be paidcould, under any set of
conditions, equal or exceed two hundred and fifty thousand dollars). Such
contractors, however, are not typically considered large contractors under the
County Code and, in fact, would be fully encompassed within the Countys Small
Business program, even if they had 19 such contracts. See, e.g., MIAMI-DADE
COUNTY, FLA., CODE 2-8.1.1.1.1.
Moreover, the prohibition on campaign activities would not only apply to
corporate speech, it would also apply to the remote individual speech of family
members, lobbyists, employees of the contractors, and anyone with a 5% or more
ownership interest in the contractor.20 Under the proposed ordinance, such
19

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

The proposed ordinance defines Principal of a County Vendor as any of the


following with respect to a County Vendor (i) any individual who is a
corporate officer or member of the board of directors; (ii) any person who has an

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

non-County candidate, they would be subject to Prosecution by the State Attorney


[and] subject to a fine up to five thousand dollars ($5,000.00) or imprisonment
not to exceed three hundred sixty-four (364) days, or both. Id. at 99.21
As such, electors voting to prohibit truly large county contractors would be
affirmatively misled as to the breadth of speech and political activity they are
actually limiting and would have no idea of the criminal penalties they are
exposing individuals to as a result of the proposed ordinance. Moreover, as
addressed in greater detail below, the ordinances outright prohibition on county
contractors contributing towards independent expenditures that support a political
candidate would also be an unconstitutional restriction on First Amendment speech
rights, see, e.g., SpeechNow.org v. Fed. Election Comm'n, 599 F.3d 686, 693 (D.C.
Cir. 2010), yet, this restriction is not even mentioned in the ballot summary.
Simply put, if the voters of Miami-Dade County are going to pass an ordinance
that violates the U.S. Constitution, they should at least do so with open eyes and be
adequately informed about that decision, instead of being lulled into a sense of
complacency by only being told that only large corporations would be affected. See
Armstrong, 773 So. 2d at 22 (When Florida citizens are being called upon to
nullify an original act of the Founding Fathers, each citizen is entitled indeed,

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

each is duty-bound to cast a ballot with eyes wide open.).


In cases analogous to this one, this Court has time after time applied this truth
in ballot questions standard to invalidate ballot questions for similar defects. See
City of Miami v. Staats, 919 So. 2d 485, 486-87 (Fla. 3d DCA 2005); Miami-Dade
Cnty. v. Village of Pinecrest, 994 So. 2d 456, 458 (Fla. 3d DCA 2008); Let Miami
Beach Decide v. City of Miami Beach, 120 So. 3d 1282, 1290, 1292 n. 7 (Fla. 3d
DCA 2013).22 In Staats, for example, the Court found the ballot language
misleading and incomplete because it failed to advise the electors that their vote
involved an issue that was not one within the sole dominion and control of the
citizens of the City, but instead one which must be addressed by the electorate of
the entire county. 919 So. 2d at 487. In Pinecrest, this Court found that ballot
language providing for a uniform county-wide system of fire protection and rescue
services was both misleading and incomplete because it implied it was creating
such a system when there already was one, and it failed to disclose that it would
curtail the rights of voters to establish their own systems. 994 So. 2d at 457-59.
In addition to affirmatively misleading voters, this ballot question presents an
emotional appeal to the voters, even though the Florida Supreme Court has held
that a ballot question is no place for political rhetoric or statements of subjective

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

intent. The ballot question initially states, Should an ordinance be enacted


addressing the appearance of ethical impropriety in County government . . . . Not
only does this ballot question assume that such an appearance exists, it claims that
this proposal will solve that problem. This is simply not permitted. As the Florida
Supreme Court held in Evans v. Firestone, 457 So. 2d 1351, 1355 (Fla. 1984), the
ballot summary is no place for subjective evaluation of special impact. The ballot
summary should tell the voter the legal effect of the amendment, and no more. The
political motivation behind a given change must be propounded outside the voting
booth. See also Advisory Opinion to the Attorney Gen. re Tax Limitation, 644 So.
2d 486, 490 (Fla. 1994) (In addressing our responsibility to assure that proposed
amendments meet the requirements of section 101.161(1), we have stated that the
purpose of this statute is to assure that the electorate is advised of the true
meaning, and ramifications, of an amendment. We have explained that the statute
requires the title and summary to be (a) accurate and informative, and (b)
objective and free from political rhetoric).
Given that this broad swath of misleading ballot language, which covers over
half of the summary presented, would fundamentally compromise any vote on
this measure, the trial court was simply wrong in directing the County to move this
measure forward. Notably, the trial court addressed this critical issue with a single
conclusory sentence devoid of any analysis or reasoning. See Appx at 197
(summarily finding that the ballot title and question adequately describe the chief
purpose of the measure). Such a finding is contrary to the law of the State of
Florida and requires that the writ of mandamus be reversed and that the Countys

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.

The Ballot Title Violates the Express Requirement of Florida Law

As discussed above, one of the essential requirements of 101.161(1), Fla. Stat.,


is that the ballot title shall consist of a caption, not exceeding 15 words in length.
The trial court correctly noted that [i]t is undisputed that the ballot title contains
sixteen (16) rather than the fifteen (15) word limit proscribed by statute. Appx at
197.23 But rather than finding that the statutory violation rendered the ballot
question legally unable to be placed on any ballot, the trial court instead rewrote
Florida election law because, in the trial courts opinion, this alone provides no
rational basis to defeat the proposed initiative [and] such a finding would
seem unwarranted and punitive considering how easy it would be to correct the
oversight. Id. Curiously, though, the trial court did not actually order the title to
be rewritten.
While the addition of one extra word in the ballot question may seem to be a
technical error made by the Petitioners, it is the law of Florida that such errors
preclude this ballot title from being placed on any ballot question. See, e.g.,
23

The ballot titled reads: INITIATORY ORDINANCE PETITION, REVISING


CAMPAIGN FINANCE CONRIBUTION LIMITS AND TRUST FUND, AND
BANNING CERTAIN CONTRACTOR CONTRIBUTIONS.

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.

The Underlying Ordinance is Unconstitutional

In addition to the legal defects in the petitions ballot language, major


provisions of the underlying ordinance are also unconstitutional.
First, the ordinance seeks to impose new campaign finance regulations on to
members of the School Board and members of the Soil & Water Conservation
District. However, both of those governing bodies are outside of the Countys
jurisdiction as set forth in the Florida Constitution. For example, Miami-Dade
Countys Home Rule Amendment (1)(c) codified in Art. VIII, 11(1)(i), Fla.
Const. (1885) and carried forward by Art. VIII, 6(e), Fla. Const. expressly
exempts the School Board from the Countys power to merge, consolidate, change,
or abolish other local governmental units, boards, districts, or authorities. Thus, the
County does not have the legal authority to regulate the election of School Board
officials. See also 1001.361, Fla. Stat. (2016) (Notwithstanding any provision of
local law or any county charter, the election of members of the district school
board shall be by vote of the qualified electors of the entire district in a nonpartisan
election as provided in chapter 105.). Therefore, this ordinance constitutes a
wholly unconstitutional regulation for two-fifths of the offices it intends to cover.
Second, the proposed ordinance prohibits County Vendors from making any
contribution to any candidate for County office (as the proposed ordinance defines
that term) or to any political committee other than a committee for the purpose of
42

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

this prohibition would extend to contributions to a political committee created for


the purpose of accepting contributions to or making expenditures that expressly
advocate the election or defeat of a candidate for a local office outside of MiamiDade County, a state-wide office, or a federal office. See id.
In short, this proposed ordinance would impose restrictions on the ability of
these individuals and corporations to make both campaign contributions and
independent expenditures in support of a candidate. The U.S. Supreme Court has
long held that political contributions are political speech and protected by the First
Amendment. See Colo. Republican Fed. Campaign Comm. v. Federal Election
Comn, 518 U.S. 604 (1996). In addition, contribution and expenditure limitations
operate in an area of the most fundamental First Amendment activities. Buckley v.
Valeo, 424 U.S. 1, 14 (1976). Therefore, laws restricting direct campaign
contributions may be permissible, but only if the government can establish that
they are closely drawn to serve a sufficiently important interest. See Alabama
Democratic Conference v. Broussard, 541 F. Appx 931, 933 (11th Cir. 2013)
(quoting Buckley v. Valeo, 424 U.S. 1, 2325 (1976)). Laws that limit a person's
independent expenditures on electoral advocacy, on the other hand, are subject to
strict scrutiny. See McCutcheon v. Federal Election Comn, 134 S.Ct. 1434, 1444
(2014). Under that standard, the Government may regulate protected speech only
if such regulation promotes a compelling interest and is the least restrictive means
to further the articulated interest. Id.
With respect to the prohibitions imposed on County Vendors that would impact
independent expenditures, the ordinance fails to promote a compelling interest and

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.

The Status of the November 8, 2016 Presidential Election Ballot

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

ballot is currently stayed pursuant to Fla. R. App. P. 9.310(b)(2), which operates


upon the filing of the Notice of Appeal.24 As a result, the Miami-Dade County
Supervisor of Elections is currently preparing the November 8, 2016 General
Election ballot without this ballot question. The preparation of the ballot requires
the preparation of over 100 different versions of the ballot for Miami-Dade
electors, depending on where each elector lives. See Appx at 187-191 (White Aff.
6). The Supervisor started preparing these versions on the morning of September
8, 2016, and each of those ballot styles must be programmed into the optical scan
ballot readers, proofread, and tested for accuracy prior to printing. Id. 7-8. The
preparation and testing of the electronic voting machines and the printing, sorting,
and mailing of ballots requires a significant amount of preparation, planning, and
effort, and must be done on a strict timetable in advance of the election. Id. 9.
Any delay in this process will present a level of unnecessary risk to the other
federal, state, county, and municipal races and issues on the ballot, including the
presidential election. Id. 15. This is because, under federal and state law, the
ballots must be completed, proofread, and tested, and vote-by-mail ballots must be
printed and sent to all overseas and absent military voters no later than September
24, 2016. Id. 11; see also 101.62(4)(a), Fla. Stat. (requiring Supervisor to send

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

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order, or amend the mandamus, if warranted, to require placement on the August


2018 Primary Election as required by the Charter. See e.g., Smith v. Smathers, 372
So. 2d 427 (Fla. 1979) (denying relief to insert candidate in ballot after printing
because, in part, [t]o have granted the relief would have caused unwarranted
disruption of the election process); Fishman v. Schaffer, 429 U.S. 1325, 1330
(1976) (denying injunction on the ground that [t]he Presidential and overseas
ballots have already been printed; some have been distributed[, and t]he general
absentee ballots are currently being printed.); Perry v. Judd, 2012 WL 120076, *5
(4th Cir. Jan. 17, 2012) (Challenges that came immediately before or immediately
after the preparation and printing of ballots are particularly disruptive and costly
for state governments and courts are loath to reach a result that would only
precipitate a more disorderly election process.)
CONCLUSION
Accordingly, Miami-Dade County respectfully requests that this Court vacate
the trial courts Order and allow the November 8, 2016 General Election to
proceed without this illegal ballot question.
Dated September 12, 2016

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
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111 N.W. 1st Street, Suite 2810


Miami, Florida 33128
Telephone: (305) 375-5151
Fax: (305) 375-5634
Email: orosent@miamidade.gov
mbv@miamidade.gov

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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

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