RECEIVED, 9/13/2016 4:46 PM, Mary Cay Blanks, Third District Court of Appeal

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.

Response Brief of Appellees/Petitioners

JOSEPH S. GELLER
Fla. Bar. No. 292771
GREENSPOON MARDER, P.A.
200 East Broward Blvd, Suite
1800
Fort Lauderdale, FL 33301
Joseph.Geller@gmlaw.com
Telephone: (954) 491-1120
BENEDICT P. KUEHNE
Florida Bar No. 233293
MICHAEL T. DAVIS
Florida Bar No. 63374
LAW OFFICE OF BENEDICT P.
KUEHNE, P.A.
100 S.E. 2nd St., Suite 3550
Miami, FL 33131-2154
Tel: 305.789.5989
Fax: 305.789.5987
ben.kuehne@kuehnelaw.com

ANDREW L. GORDON
Florida Bar No. 309761
VER PLOEG & LUMPKIN, P.A.
100 S.E. Second Street, Suite 3000
Miami, FL 33131
Tel: (305) 577-3996
Fax: (305) 577-3559
agordon9@gmail.com

JOSEPH E. SANDLER
Pro Hac Vice Motion to be Filed
DARA LINDENBAUM
Pro Hac Vice Motion to be Filed
Sandler, Reiff, Lamb, Rosenstein &
Birkenstock PC
1025 Vermont Ave., N.W. Suite 300
Washington, D.C. 20005
Tel: 202 479 -1111
Fax: 202-479-1115
sandler@sandlerreiff.com
lindenbaum@sandlerreiff.com
Counsel for Appellants

TABLE OF CONTENTS
TABLE OF CONTENTS .......................................................................................... ii
TABLE OF AUTHORITIES ................................................................................... iv
APPELLEES/PETITIONERS COUNTER-STATEMENT OF
CASE AND FACTS ..................................................................................................1
SUMMARY OF ARGUMENT .................................................................................1
ARGUMENT .............................................................................................................3
I.

Introduction......................................................................................................3

II. The Ballot Title Is Legally Sufficient ..............................................................8

A. The 15-Word Limit in Section 101.161 Fla. Stat. Is Inapplicable ...............8
B. Even if Applicable, the 15-Word Limit Is Not Grounds for Keeping the
Proposed Ordinance Off the Ballot ...................................................................11
III. The Defects Alleged by the County in the Ballot Summary Are Not
Grounds for Keeping the Ordinance Off the Ballot .............................................16
A. The Ordinance Should be Placed on the Ballot Unless It Is Entirely
Unconstitutional ................................................................................................17
B. The Ballot Summary Is Not Misleading ....................................................21
IV. The County is Legally Required to Place the Proposed Ordinance on the
November 2016 General Election Ballot .............................................................33
A. Within 30 Days After the Signed Petitions Are Submitted, the Board Must
Have Them Counted and Adopt the Ordinance or Put It on the Ballot ............34
B. Even if the Board Has an Additional 30 Days to Decide Whether to Adopt
the Ordinance or Put it on the Ballot, That Time Expired September 7 ...........35
C. The Countys Interpretation of the Charter Is Illogical and Contrary to the
Fundamental Purposes of the Charter Provision ...............................................37
V. The Measure Is Constitutional .......................................................................40
VI.

The Writ of Mandamus Was Properly Issued ............................................45

ii

A. In the Instant Emergency Circumstances, the Trial Courts Omission of a

Formal Alternative Writ Does Not Warrant Reversal. .....................................46
B. The Trial Court Did Not Improperly Rely Upon Disputed Facts ..............48
C. The Trial Court Properly Did Not Defer to the Countys Interpretation of
the Charter .........................................................................................................49
CONCLUSION ........................................................................................................50
CERTIFICATE OF SERVICE ................................................................................52
CERTIFICATE OF COMPLIANCE .......................................................................52

iii

TABLE OF AUTHORITIES
CASES
Abreau v. Cobb, 670 So. 2d 1010 (Fla. 3d DCA 1996) .......................................9, 11
Advisory Opinion to Atty Gen. re 1.35% Property Tax Cap
Unless Voter Approved, 2 So.3d 968 (Fla. 2009) ....................................................21
Advisory Opinion to Atty Gen. re Florida Marriage
Protection Amendment, 926 So.2d 1229 (Fla. 2006)........................................ 29, 30
Advisory Opinion to Atty Gen. re Protect People from
the Health Hazards of Second-Hand Smoke, 814 So.2d 415 (Fla. 2002) ........ 29, 33
Advisory Opinion to Atty Gen. re Right to Treatment & Rehabilitation
for Non-Violent Drug Offenses, 818 So.2d 491 (Fla. 2002) ......................... 3, 15, 22
Advisory Opinion to Atty Gen. re Rights of Electricity Consumers Regarding
Solar Energy Choice, 188 So.2d 822 (Fla. 2016) ..................................................3
Advisory Opinion to the Atty Gen. re Protect People, Especially
Youth, from Addiction, Disease and Other Health Hazards of Using
Tobacco, 926 So.2d 1186 (Fla. 2006) ......................................................................29
Advisory Opinion to the Atty Gen. re Referenda Required for
Adoption and Amendment of Local Government Comprehensive Land
Use Plans, 902 So.2d 763 (Fla. 2005) ........................................................ 28, 30, 33
Alachua Cty. v. Cheshire, 603 So. 2d 1334 (Fla. 1d DCA 1992) ............................14
Arizona Free Enterprise Clubs Freedom PAC v. Bennett,
564 U.S. 721 (2011) .................................................................................................32
Branca v. City of Miramar, 634 So. 2d 604 (Fla. 1994)..........................................13
Brooks v. Watchtower Bible & Tact Society of Fla., Inc.,
706 So. 2d 85 (Fla. 4th DCA 1998) .........................................................................19
Browning v. Florida Hometown Democracy, Inc.,
29 So. 3d 1053 (Fla. 2010).........................................................................................9
iv

Buckley v. Valeo, 424 U.S. 1 (1976) ................................................................. 32, 40

Capital Bank v. G & J Investments Corp.,
468 So. 2d 534 (Fla. 3d DCA 1985) ........................................................................48
Casino Assn of La. v. State ex rel. Foster,
820 So.2d 494 (La. 2002) ........................................................................................44
Citizens Proposition for Tax Relief v. Firestone,
386 So. 2d 561 (Fla.1980)..................................................................... 10, 21, 27, 49
City of Boca Raton v. Siml,
96 So.3d 1140 (Fla. 4th DCA 2012)............................................................ 20, 21, 40
Conner v. Mid-Florida Growers, Inc.
541 So. 2d 1252 (Fla. 2d DCA 1989) ......................................................................47
Council Bros. v. City of Tallahassee, 634 So. 2d 264
(Fla. 1d DCA 1994) .................................................................................................13
Diamond Aircraft Indus., Inc. v. Horowitch, 107 So. 3d 362 (Fla. 2013) ...............39
Donovan v. Okaloosa County, 82 So. 3d 801 (Fla. 2012) .......................................49
Evans v. Firestone, 457 So. 2d 151 (Fla. 1984).......................................................21
Fla. Dep't of Envtl. Prot. v. ContractPoint Fla. Parks, LLC,
986 So.2d 1260 (Fla. 2008)......................................................................................39
Florida Dept. of State v. Mangat, 43 So.2d 642 (Fla. 2010) ...................................28
Florida Hometown Democracy v. Cobb,
953 So. 2d 666 (Fla 1st DCA 2007) ....................................................................9, 15
Forsythe v. Longboard Key Beach Erosion Control Dist.,
604 So.2d 452 (Fla. 1992)........................................................................................35
Gray v. Bryant, 125 So. 2d 846 (Fla.1960)..............................................................10
Green Party of Conn. v. Garfield,
616 F.3d 189 (2d Cir. 2010)........................................................................ 32, 43, 44
v

Hatten v. State, 561 So.2d 562 (Fla. 1990) ..............................................................45

Heart of Adoptions, Inc., v. J.A., 963 So.2d 189 (Fla. 2007) ..................................35
Hollywood Beach Hotel Co. v. City of Hollywood,
329 So. 2d 10 (Fla. 1976).........................................................................................13
In re Advisory Opinion to Atty Gen. ex. Rel. Limiting Cruel and Inhumane
Confinement of Pigs During Pregnancy, 815 So.2d 597 (Fla. 2002) ..... 28, 30, 33
In re Advisory Opinion to Atty Gen. re Casino Authorization, Taxation and
Regulation, 656 So.2d 466 (Fla. 1995) ................................................................23
In re Advisory Opinion to Atty Gen. re Limits or Prevents Barriers to Local Solar
Electricity Supply, 177 So. 3d 235 (Fla. 2015) ....................................................22
In re Advisory Opinion to Atty Gen. re Use of Marijuana for Certain Medical
Conditions, 132 So.2d 786 (Fla. 2014) ............................................................3, 15
In Re Earle Asphalt Co., 950 A.2d 918 (N.J. Super. App. Div. 2008) ....................44
Kuge v. State, Dep't of Admin., Div. of Ret.,
449 So. 2d 389 (Fla. 3d DCA 1984) ........................................................................13
Lewis v. Mosley, 204 So.2d 197 (Fla.1967) .............................................................40
M.T. v. Agency for Persons with Disabilities, No. 3D15-2360,
2016 WL 4446014 (FLA. 3d DCA 2016)................................................................49
Matheson v. Miami-Dade County, 187 So. 3d 221 (Fla. 3d DCA 2015) ................10
McCutcheon v. Federal Election Commn, 134 S. Ct. 1434 (2014)........................32
Miami Heat Ltd. Partnership v. Leahy,
682 So.2d 198 (Fla. 3d DCA 1996) .................................................................. 10, 11
Miller v. FEC, 136 S. Ct. 895 (2016) ............................................................... 42, 43
OConnell v. Martin County, 84 So.2d 463 (Fla. 4th DCA 2012), .................. 30, 31
Palm Beach County v. Hudspeth, 540 So.2d 147 (Fla. 1d DCA 1989) ............ 25, 26
Raymond James Financial Servs., Inc. v. Phillips,
126 So.3d 186 (Fla. 2013)........................................................................................35
vi

Reeves v. State, 957 So. 2d 625 (Fla. 2007).............................................................40

Rivergate Restaurant Corp. v. Metropolitan Dade County,
369 So. 2d 679 (Fla. 3d DCA 1979) ........................................................................20
Schiller Park Colonial Inn, Inc. v. Berz, 349 N.E.2d 61 (Ill. 1976) ........................44
Shulmister v. City of Pompano Beach,
798 So.2d 799 (Fla. 4th DCA 2001) .........................................................................46
Smith v. Coalition Reduce Class Size,
827 So. 2d 959 (Fla. 2002).......................................................................................10
State Department of Revenue v. Anderson,
403 So.2d 397 (Fla.1981).........................................................................................13
Town of Largo v. Imperial Homes Corp.,
309 So.2d 571 (Fla. 2d DCA 1975) .........................................................................13
Verizon Bus. Purchasing, LLC v. Dep't of Revenue,
164 So.3d 806 (Fla. 1st DCA 2015) ........................................................................49
Verizon Fla., Inc. v. Jacobs, 810 So.2d 906 (Fla.2002) ..........................................49
Wagner v. FEC, 793 F.3d 1 (D.C. Cir. 2015) ................................................... 42, 43
Wilson v. Dade County, 369 So.2d 1002 (Fla. 3d DCA 1979) ................................20
Woodham v. Blue Cross & Blue Shield of Fla., Inc.,
829 So.2d 891 (Fla. 2002)........................................................................................35
Wright v. Frankel, 965 So.2d 365 (Fla. 3d DCA 2007) ............................. 19, 40, 45
STATUTES
100.361, Fla. Stat. ...................................................................................................9
101.161, Fla. Stat. .................................................................................... ii, 5, 8, 11
288.9932, Fla. Stat. ...............................................................................................24
57.111, Fla. Stat ....................................................................................................24
11, Art. VIII .............................................................................................................9
vii

30 Ill. Comp. Stat. 500/50-37(a) ..............................................................................42

52 U.S.C. 30119(a) ........................................................................................ 42, 43
Article VIII, 11(i), Fla. Const. ................................................................................9
Conn. Gen. Stat. 9-612 ................................................................................... 42, 43
Fla. R. Civ. P. 1.630 ................................................................................................46
Fla.R.Civ.P. 1.010 ....................................................................................................48
Haw. Rev. Stat. 11-355 .........................................................................................42
MIAMI-DADE COUNTY, FLA., CODE 10-33.02. ............................................24
MIAMI-DADE COUNTY, FLA., CODE 2-10.4.01. ...........................................24
MIAMI-DADE COUNTY, FLA., CODE 2-8.1.1.1.1 .....................................................24
MIAMI-DADE COUNTY, FLA., HOME RULE CHARTER 3.06 .....................................11
MIAMI-DADE COUNTY, FLA., HOME RULE CHARTER 8.01 ............................. passim
N.J. Stat. Ann. 19:44A-20.17 ................................................................................42

viii

APPELLEES/PETITIONERS COUNTER-STATEMENT OF CASE AND

FACTS
Appellees/Petitioners accept Appellants/Respondents Statement of the Case
and

Facts

insofar

as

the

chronology

of

events

is

correctly

stated.

Appellees/Respondents do not accept the legal arguments improperly included in the

Statement, particularly the Countys impermissible construction of the County
Charter and of the Countys obligations thereunder.
SUMMARY OF ARGUMENT
The Miami-Dade County Home Rule Charter confers on the citizens of the
County the right to propose an ordinance by initiative. In this case, the sponsors of
the subject initiatory petition (the Petition) followed all of the procedures and
requirements set forth in the Charter: they obtained the approval of the County Clerk
as to the form of the Petition; they collected the required number of validly signed
petition forms, as certified by the Supervisor of Elections; and they submitted those
signed petition forms to the Board of County Commissioners within the time
specified in writing by the County so as to permit the petition to be voted on in this
Novembers general election. The Charter requires that, in these circumstances, the
Board of County Commissioners must either adopt the proposed ordinance or place
it before the voters in November.

The Board did neither. Accordingly, the

Petitioners had a clear legal right to have the measure placed on the November ballot
and the trial court correctly issued a writ of mandamus.
1

Contrary to the Countys argument, defects in the ballot title or summary of a

measure do not constitute grounds for keeping it off the ballot. Initiatives are to be
placed on the ballot unless they are entirely unconstitutional, and none of the alleged
defects goes to the constitutionality of the measure. In any event, the 15-word limit
in Florida state law does not apply to initiatory petitions submitted under the Charter.
Nor is the ballot summary misleading: it accurately describes the chief purpose and
key provisions of the measure, and no more is required.
The County Charter requires that the signatures be reviewed and a decision be
made within 30 days of the date the signatures were submitted by the Board. Even
if the Board had an additional 30 days after counting the petitions to decide whether
to adopt an ordinance, it made that decision in the negative on September 7, 2016
a decision which, given the absence of any grounds for keeping the measure off the
ballot, required that it be placed on the ballot for the November 2016 general
election. The County interprets the Charter to allow a unlimited period of time for
the signatures to be counted and the Board to act, making it impossible for citizens
ever to know when signatures would have to be submitted to ensure placement of a
measure on the ballot in the next election. And under the Countys interpretation,
even though the County Clerk has approved the form of petition, tens of thousands
of signed petition forms can still be thrown out after they have been collected and
submitted if the Board decides, willy nilly, that the form approved by the Clerk was
2

nevertheless insufficient. Such an interpretation of the Charter makes no sense,

would effectively nullify the right of initiatory petition conferred by the Charter, is
entitled to no deference and is impermissible.
For these reasons, the Petitioners were entitled to issuance of the writ of
mandamus. None of the purported procedural defects in the issuance of the writ,
identified by the County, are reasons for invalidating the writ. The trial courts order
should therefore be affirmed.
ARGUMENT
I.

INTRODUCTION
The courts have traditionally applied a deferential standard of review to the

validity of a citizen initiative petition and have been reluctant to interfere with the
right of self-determination for all Floridas citizens to formulate their own organic
law. In re Advisory Opinion to Atty Gen. re Use of Marijuana for Certain Medical
Conditions, 132 So.2d 786, 794 (Fla. 2014) (quoting Advisory Opinion to Atty Gen.
re Right to Treatment & Rehabilitation for Non-Violent Drug Offenses, 818 So.2d
491, 494 (Fla. 2002)). Accordingly it is this Courts duty to uphold a proposal
unless, it can be shown to be clearly and conclusively defective. Advisory Opinion
to Atty Gen. re Rights of Electricity Consumers Regarding Solar Energy Choice,
188 So.2d 822, 827 (Fla. 2016).

In this case, the sponsors of the subject initiatory petition (the Petition)
followed all of the procedures and requirements set forth in the Miami-Dade
County Charter: they obtained the approval of the County Clerk as to the form of
the Petition; they collected 55,385 validly signed petition forms, as certified by the
Supervisor of Elections (Supp. Appx at 2; Initial Brief of Appellants/Respondents
(County Br.) at 11); and they submitted those signed petition forms to the Board
of County Commissioners within the time specified in writing by the County so
as to permit the petition to be voted on this November (Appx at 17, 21-22.).
The Petitioners specifically asked the Supervisor of Elections what the deadline
would be to qualify the ordinance to appear on the November ballot, and were told
that the deadline was August 9, 2016. Affidavit of Christian Ulvert 9-10, Appx
39-40. Petitioners turned in all the signed petitions on August 2, 2016. County Br.
at 7.
The Charter provides that the Board is to order the petitions counted by the
Supervisor of Elections within 30 days of the date they are submitted; and within
that 30-day period, if sufficient signatures have been presented, either adopt the
ordinance as submitted in the petition, or, without further action of the Board,
(MIAMI-DADE COUNTY, FLA., HOME RULE CHARTER 8.01(4)) place it on the ballot
in the next scheduled county-wide election-- in this case the November 8, 2016
general election. Id. 8.01(5)(a). In this case, the County, contrary to the plain
4

Charter language, refused to begin counting the and the Board failed to order the
counting of signatures completed within the required 30-day period; then, on
September 7, 2016, more than 30 days after the Petition had been presented with
sufficient signatures, refused either to adopt the ordinance or put it on the ballot, on
the grounds that the petition was not legally sufficient. County Br. at 11.
In these circumstances, the trial court correctly held that Accountable MiamiDade, the committee that sponsored the petition and signature collection (the
Petitioners) had a clear legal right to have the ordinance placed on the ballot.
First, the 15-word limit on the ballot title in section 101.161, Fla. Stat., is
inapplicable to initiatory petitions submitted under the Miami-Dade County Charter.
Even if that statute were applicable, the additional one word would not be grounds
for refusing to put the measure on the ballot given that the official exclusively
authorized to approve the form of the petition had accepted the extra word.
Second, the alleged defect in the ballot summary is not grounds for keeping
the measure off the ballot. Initiatives are to be placed on the ballot unless they are
entirely unconstitutional, and none of the alleged defects goes to the constitutionality
of the entire measure. The County Charter itself can only be read logically to require
the Board to place a measure on the ballot if enough signatures have been submitted
and if the measure is not fundamentally unconstitutional.

In any event, the ballot summary in this case clearly informs voters of the
chief purpose of the measure and of the key elements of the ordinance. That the
summary does not spell out every detail of the measure does not make it misleading.
That the new limits apply to three of the four County offices does not make the
summarys reference to County offices in any fundamental way deceptive or
misleading to voters, nor does the reference to limiting contributions by large
County contractors is any way hide the scope or effect of the measure. And the
statement of the ordinances chief purpose is an entirely accurate statement of its
basic rationalenot superfluous political rhetoric. Measures are to be placed on the
ballot unless entirely unconstitutional, and these alleged defects in no way go to the
constitutionality of this proposed ordinance.
Third, the County is legally required to place the proposed ordinance on the
November 2016 general election ballot. The Charter requires that the signatures be
reviewed and a decision be made within 30 days of the date the signatures were
submitted by the Board. Even if the Board had an additional 30 days to decide
whether to adopt an ordinance, it made that decision in the negative on September
7th requiring placement of the ordinance on the November 2016 general election
ballot.
By contrast, under the Countys interpretation of the County Charter, once
signed petition forms have been turned in, within the allotted period of time the
6

Supervisor of Elections has a limitless amount of time in which to review the petition
forms to determine if a sufficient number of valid signatures has been submitted.
Then, even if the citizens proposing the ordinance have submitted sufficient valid
signatures, meaning they have collected tens of thousands of signatures on petition
forms pre-approved by the County Clerk, those citizens risk having all the petition
forms thrown out after they are collected, based on a post-hoc determination of
legal insufficiency by the Board. The County Charter clearly contemplates that if
enough signatures are submitted in the allotted time, and the Board does not adopt
the proposed ordinance, the ordinance will be placed on the ballot in the next
scheduled county-wide election.

But under the Countys interpretation, there

literally is no deadlineeven were signatures submitted before the beginning of

timeby which citizens proposing an ordinance could be guaranteed that their
ordinance will either be adopted into law or put on the ballot in the next election as
promised by the Charter. Such an interpretation makes no sense; is inconsistent with
the principle that measures should be placed on the ballot unless they are entirely
unconstitutional; and is wholly inconsistent with the fundamental intent of the
Charter to confer on the Countys citizens the power to propose the passage of
ordinances.
Fourth, the proposed ordinance is not entirely unconstitutional under the First
Amendment. The provisions relating to relatives of and entities related to County
7

contractors have been upheld in constitutional challenges. And while the issue of
limiting contributions by County contractors to independent expenditure committees
has not been decided, analogous case law demonstrates that provisions would likely
be upheld.
Fifth, for the above reasons, the Petitioners did have a clear legal right to
have the ordinance placed on the November general election ballot. The trial court
substantially followed the requirements for issuing a writ of mandamus. The facts
referred to in the trial courts decision that the County insists are dispute are also
immaterial to the trial courts decision. And the trial court was not required to defer
to the Countys interpretation of its own Charter hen that interpretation, as noted
above, makes no sense and flies in the face of the basic purpose of the Charter
provision. The Supervisor of Elections has sufficient time to put the ballot question
on the ballot for the November 2016 election and the trial courts order requiring her
to do so should be affirmed.
II.

THE BALLOT TITLE IS LEGALLY SUFFICIENT

A. The 15-Word Limit in Section 101.161 Fla. Stat. Is Inapplicable

The County contends that the ballot title submitted by Petitioners is legally
insufficient because it contains sixteen words, whereas section 101.161(1), Fla. Stat.,
provides that the ballot title shall consist of a caption, not exceeding 15 words in
length. County Br. at 40. The 15-word limit, however, appears nowhere in the
8

County Charter provision governing the initiatory petition process in Miami-Dade

County. MIAMI-DADE COUNTY, FLA., HOME RULE CHARTER 8.01.
Under the Florida Constitution, the Charter is the sole source of any
requirements relating to the initiative process. Article VIII, section 11(i) of the
Florida Constitution provides that the Dade County Home Rule Charter [s]hall
provide a method for initiative and referendum, including the initiation of and
referendum on ordinance and the amendment or revision of the home rule charter.
This constitutional provision is self-executing, meaning that to the extent it creates
a right, the Legislature may not modify the right in such a fashion that alters or
frustrates the intent of the framers and the people. Browning v. Florida Hometown
Democracy, Inc., 29 So. 3d 1053, 1064 (Fla. 2010). In this case, the Constitution
has conferred on the County the right to provide for initiative in its Charter, and that
right cannot be conditioned or modified by statute or ordinance.
Thus, in Abreau v. Cobb, 670 So. 2d 1010 (Fla. 3d DCA 1996), a petition for
recall failed to state the grounds for recall as required by section 100.361(1)(b), Fla.
Stat., then in effect. This Court found that the recall petition complied with the
County Charter; that the Charter contained no requirement to state the grounds for
recall; and therefore that the petition did not have to comply with the statute:
The charter supersedes the statute pursuant to 11, Art. VIII of the 1995
Florida Constitution, carried forward by 6(e), Art. VIII, of the 1968 Florida
Constitution. The Charter sets for the petition form, which does not require a
recall petition to state the grounds for removal. Thus, pursuant to the
9

constitutional provision, the petition is not required to comply with the statute
and the Charter is supreme.
670 So. 2d at 1012. Again, in Miami Heat Ltd. Partnership v. Leahy, 682 So.2d 198
(Fla. 3d DCA 1996), this Court ruled that the single subject rule imposed by a section
of the Dade County Code could not be applied to the proposed ordinance, because
the Home Rule Charter provides the only method for initiating referenda on
ordinances and does not impose a single subject requirement. 682 So.2d at 202.
Significantly, this Court quoted extensively from Citizens Proposition for Tax Relief
v. Firestone, 386 So. 2d 561 (Fla.1980) where the Supreme Court noted:
This is a self-executing constitutional provision. It clearly establishes a right
to propose by initiative petition a constitutional amendment which may be
implemented without the aid of any legislative enactment. Gray v. Bryant, 125
So. 2d 846 (Fla.1960).... In considering any legislative act or administrative
rule which concerns the initiative amending process, we must be careful that
the legislative statute or implementing rule is necessary for ballot integrity
since any restriction on the initiative process would strengthen the authority
and power of the legislature and weaken the power of the initiative process.
The delicate symmetric balance of this constitutional scheme must be
maintained, and any legislative act regulating the process should be allowed
only when necessary to ensure ballot integrity. We do, however, recognize
that the legislature, in its legislative capacity, and the secretary of state, in his
executive capacity, have the duty and obligation to ensure ballot integrity and
a valid election process. Ballot integrity is necessary to ensure the
effectiveness of the constitutionally provided initiative process.
Id. at 566-67 (emphasis added). See Smith v. Coalition Reduce Class Size, 827 So.
2d 959 (Fla. 2002) (expressly approving Miami Heat).
While this Court in Miami Heat and in Matheson v. Miami-Dade County, 187
So. 3d 221 (Fla. 3d DCA 2015), assumed the applicability of portions of section
10

101.161, Fla. Stat., nothing in either opinion suggests that this Court was ruling that
the 15-word limitation was necessary to ballot integrity particularly when
contrasted with an alternative 16-word title whose form had been previously
approved by the County.1
The County alternatively claims that MIAMI-DADE COUNTY, FLA., HOME
RULE CHARTER 3.06 incorporates the provisions of state election law into County
initiative elections. County Br. at 5 n.8. This provision has been in the County
Charter since it was first enacted in 1957, prior to the decisions in Abreau and Miami
Heat. It was not applied there and should not be applied here because Charter section
8.01(3) expressly limits deficiencies as to form and compliance with this Section.
Other articles and sections are not relevant.
For these reasons, the 15-word limit in section 101.161, Fla. Stat. cannot be
applied to an initiatory petition that meets the requirements of the Charter itself.
B. Even if Applicable, the 15-Word Limit Is Not Grounds for Keeping the
Proposed Ordinance Off the Ballot
Even if the 15-word limit in section 101.161 Fla. Stat., were applicable, that
limit would not constitute grounds for keeping the proposed ordinance off the ballot.
The MIAMI-DADE COUNTY, FLA., HOME RULE CHARTER, 8.01(1) provides that the
citizen proposing an ordinance by initiative shall submit the proposal, including

On the same grounds, the County may not expand by ordinance the Charters 30-day period to
only count business days.
1

11

proposed ballot language to the Clerk of the circuit Court who shall without delay
approve as to form a petition for circulation in or or several copies. Thus, the
County Clerk is exclusively empowered to approve or disapprove the formthe
ballot title, summary and language-- of an initiative petition proposing an ordinance:
In this case, the Petitioners submitted the initiative to the Miami-Dade County
Clerk on April 26, 2016 and, on April 28, 2016, the County Clerk issued a letter to
the proposers stating that, The initiative petition that you submitted to this office
for approval as to form on April 26, 2016 has been approved as of todays date.
Appx at 43-44; County Br. at 5.
In these circumstances, the doctrine of equitable estoppel precludes the Board
of County Commissioners from determining that the petition is insufficient as to
form based on the extra word in the ballot title. As noted, pursuant to his exclusive
authority under the Charter, the County Clerk approved the petition in its current
form (with the 16-word ballot title). The petition sponsors relied on the Clerks
approval and circulated the petition, spending substantial sums and expending a
tremendous effort to collect a sufficient number of signatures on the approved
petition form. The proposers submitted the petition on August 1, 2016. No
representative of the County identified any defect in the form of petition before the
signatures were submitted.

12

The theory of estoppel is an application of the rules of fair play. See Branca
v. City of Miramar, 634 So. 2d 604, 606 (Fla. 1994) (citing Town of Largo v.
Imperial Homes Corp., 309 So.2d 571 (Fla. 2d DCA 1975). The elements of
equitable estoppel are: 1) a representation as to a material fact that is contrary to a
later-asserted position; 2) reliance on that representation; and 3) a change in position
detrimental to the party claiming estoppel, caused by the representation and reliance
thereon. State Department of Revenue v. Anderson, 403 So.2d 397, 400 (Fla.1981).
Equitable estoppel applies against a government entity and may be invoked against
a municipality as if it were an individual. Council Bros. v. City of Tallahassee, 634
So. 2d 264, 266 (Fla. 1st DCA 1994). The reasonable expectation of every citizen
that he will be dealt with fairly by his government, can form the basis for application
of equitable estoppel against a governmental entity. Council Bros., 634 So. 2d at
266 (citing Hollywood Beach Hotel Co. v. City of Hollywood, 329 So. 2d 10, 18 (Fla.
1976)).
The courts have applied equitable estoppel against government entities, even
when the result would conflict with Florida law. In Kuge v. State, Dep't of Admin.,
Div. of Ret., 449 So. 2d 389, 390 (Fla. 3d DCA 1984), a state employee relied upon
the Division of Retirements representation concerning credit she should receive for
state retirement benefits. The Division initially advised the employee that she would
complete ten years of service at the end of March 1983 but in April 1983, it rescinded
13

its earlier memorandum and advised that it had mistakenly allowed additional time
of creditable retirement service for education leave which could not be taken unless
the employee had ten years of creditable service. The Court held that representations
concerning the employees creditable state retirement service were representations
of material fact on which the employee relied on to her detriment; and that she was
therefore entitled to the credit, even though such credit was otherwise precluded by
state law.
Similarly, in Alachua Cty. v. Cheshire, 603 So. 2d 1334, 1335 (Fla. 1st DCA
1992), federal officials made representations to a person holding a lien against a
property to be transferred from the federal government to Alachua County, that the
county would pay the valid lien. The lienholder relied on those representations and
did not file a foreclosure suit within the applicable limitations period. The Court
refused the Countys efforts to avoid the effect of the federal officials
misrepresentations, holding that the federal employees ignorance of the law or lack
of intent to mislead, does not bar application of equitable estoppel. Id. at 1337
(There is no requirement that the government officials or intentionally mislead or
deceive Cheshire before estoppel applies.).
In this case, the County Clerk represented that the petition was approved as to
form and the petition sponsors clearly relied on that representation. The County is
equitably estopped from changing its position on that issue.
14

Even were the County not estopped from changing its position on the validity
of the form of this position, as the trial court found, the one word in excess of the
state statutory limit would not be grounds for refusing to allow this measure on the
ballot. Although the courts routinely acknowledge compliance with the word limits
in approving ballot titles and summaries, no court has ever, in any reported case we
can identify, overruled the certification of county officials (in this case, the County
Clerk), and actually removed a measure from the ballot or held it invalid because the
ballot title exceeded the 15-word limit. A decision to that effect would be wholly
inconsistent with the fundamental principle that the Court has traditionally applied
a deferential standard of review to the validity of a citizen initiative petition and has
been reluctant to interfere with the right of self-determination for all Floridas
citizens to formulate their own organic law. In re Advisory Opinion to Atty Gen.
re Use of Marijuana for Certain Medical Conditions, 132 So.2d 786, 794 (Fla. 2014)
(quoting Advisory Opinion to Atty Gen. re Right to Treatment & Rehabilitation for
Non-Violent Drug Offenses, 818 So.2d 491, 494 (Fla. 2002)).
The County quotes Florida Hometown Democracy v. Cobb, 953 So. 2d 666,
676 (Fla 1st DCA 2007) for the claim that the word limit insures ballot integrity by
limiting the ballot to a workable and user friendly length. County Br. at 41 That
court, however, was considering the 75-word limit for ballot language. The primary

15

goal of the title is to explain the purpose of the initiative which is in no way frustrated
or undermined by the inclusion of an additional word.
For these reasons, that the ballot title contains 16 words is not a ground for
depriving the voters of the County of an opportunity to vote on this measure.
III.

THE DEFECTS ALLEGED BY THE COUNTY IN THE BALLOT

SUMMARY ARE NOT GROUNDS FOR KEEPING THE
ORDINANCE OFF THE BALLOT

The defects the County alleges exist in the ballot summary of the Petition are
not grounds for keeping the measure off the ballot. The Countys ability and
discretion to refuse to place a petition on the ballot are expressly limited by plain
express language to three and only three circumstances by Charter section 8.01(3):
an insufficiency of signatures, a deficiency as to form not substanceand
noncompliance with this Section [8.01(3) [emphasis added]. This language is
constitutional and cannot be limited or modified by County ordinance. The County
admits the sufficiency of the number of signatures, has not claimed that there is any
defect as to the form of the signatures (the reason for the second review as to form)
and has not alleged any other noncompliance with this Section. The trial court
accordingly was entirely correct in its judgment.
In this case, the County improperly attempts to go beyond the grounds
permitted by 8.01(3) and contends that the ballot summary hides the ball and
flies under false colors because (i) it refers to County offices whereas the new
16

contribution limits do not apply to one of the four County offices, County Br. at 3334; (ii) refers to banning contributions from large County contractors, with the
ordinance defining that to mean contractors with a contract for $250,000 or more
and their families and employees, whereas other County statutes defined large
contractors differently; and (iii) improperly presents a emotional appeal to voters
by stating that its purpose to address[] the appearance of ethical impropriety in
County government. County Br at 38-39. None of these alleged defects are
grounds for declining to put on the ballot a measure that otherwise meets all legal
requirements.
A. The Ordinance Should be Placed on the Ballot Unless It Is Entirely
Unconstitutional
As noted above, the MIAMI-DADE COUNTY, FLA., HOME RULE CHARTER,
8.01(1) provides that the citizen proposing an ordinance by initiative shall submit
the proposal, including proposed ballot language to the Clerk of the Circuit Court
who shall without delay approve as to form a petition for circulation in one or several
copies. (emphasis added). Once the Clerk approves the form, the citizens or
committee sponsoring the petition then have 120 days (id. 8.01(2)) to collect tens
of thousands of signatures on the petitions forms that have been approved by the
Clerkincluding the ballot title and summary.
The County insists that, after the tens of thousands of signed petitions, each
individually signed, witnessed and notarized, have been submitted to the Board, the
17

Board is then free to throw out all the petitions if the Board finds that they are not
legally sufficient, sufficient as to form, and/or have followed the process in the
Charter. County Br. at 29. That interpretation of the Charter makes no sense. There
would be no point in requiring pre-approval of the ballot title, summary and
legislative form of the proposed ordinance by the Clerk before petitioners were put
to the tremendous time and expense of collecting tens of thousands of signatures, if
the Board were free to disregard that pre-approval and throw out the petitions for
failing to meet the precise requirements that the Clerk already found had been met
before the petitions were circulated.
To be sure, the MIAMI-DADE COUNTY, FLA., HOME RULE CHARTER 8.01(3)
provides that the Board shall notify the petitioners that the petition has failed if the
number of signatures is insufficient or the petition is deficient as to form or
compliance with this Section. And the county makes much of the 2002 Charter
Amendment that requires a proposal to be adopted or placed on the ballot without
further action of the board, if the proposal is legally sufficient. County Br. at 29.
But what does legally sufficient mean, at that stage, when the signed petitions have
been turned in? The only logical reading of the word form in this separate section
is as referring to the form, number and distribution of signaturesas set forth this
Section, i.e., section 8.01 of the Charterand not to the exact same matters of

18

formi.e., ballot title, summary and form of legislative languageas had

previously been reviewed by the Clerk.
The implication of that interpretation is that the Board does not have the power
to keep a measure, otherwise qualifying under the Charter, off the ballot because of
defects in the ballot title or summaryand that is precisely what the Courts have
held, as the trial court found.
In Wright v. Frankel, 965 So.2d 365 (Fla. 3d DCA 2007), an initiative petition
for an ordinance was submitted with sufficient signatures but the City refused to
place the initiative on the ballot based on the City Attorneys advice that the subject
matter of the ordinance was not proper for an initiative. The initiative proponents
brought suit to compel the City to put the initiative on the ballot, and this Court ruled
in their favor, holding that petitioners followed the procedures authorized by the
city charter for requiring the City Commission to either adopt their proposed
ordinance or submit them to the electorate. 965 So.2d at 370. The Court
reviewed cases holding that a referendum on a proposed ordinance cannot be
prevented unless it is demonstrated that the ordinance is unconstitutional in its
entirety. Id. at 371 (quoting Brooks v. Watchtower Bible & Tact Society of Fla.,
Inc., 706 So. 2d 85, 90 (Fla. 4th DCA 1998)). The common thread running through
cases concerning the referendum process is the principle that citizens are free to
express their views on municipal matters through the power of referendum and that
19

courts should not interfere with the exercise of their referendum rights except in very
narrow circumstances. Id. at 372.
Again, in City of Boca Raton v. Siml, 96 So.3d 1140 (Fla. 4th DCA 2012), an
initiative petition was submitted to add a new ordinance specifying uses for certain
lands owned by the local beach and park district. The City Attorney issued an
opinion that the proposed measure should not be put on the ballot because it would
abrogate the powers of the district. The DCA disagreed, and upheld the lower
courts order that the City must put the measure on the ballot. The Court ruled that,
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. 96 So. 3d at
1142. See to the same effect, Wilson v. Dade County, 369 So.2d 1002 (Fla. 3d DCA
1979) (in the absence of constitutional challenge, initiative for an ordinance must be
placed on the ballot); Rivergate Restaurant Corp. v. Metropolitan Dade County, 369
So. 2d 679 (Fla. 3d DCA 1979) (Where only a portion of a proposed ordinance was
unconstitutional, no basis for keeping it off the ballot).
While the County also contends that the proposed ordinance is substantively
unconstitutionalan issue addressed separately belowthe alleged defects in the
ballot summary do not go to the question of constitutionality, let alone demonstrated
that the ordinance is unconstitutional in its entirety. For these reasons, the alleged
20

defects in the ballot summary do not constitute permissible grounds for the Board to
decline to put the measure on the ballot.

B. The Ballot Summary Is Not Misleading

In any event, the alleged defects in the ballot summary do not make it
misleading to voters. In reviewing the ballot title and summary, a court considers
two issues: (1) whether the ballot title and summary fairly inform the voter of the
chief purpose of the amendment; and (2) whether the language of the ballot title and
summary misleads the public. Id. (quoting Advisory Opinion to Atty Gen. re
1.35% Property Tax Cap Unless Voter Approved, 2 So.3d 968, 974-75 (Fla. 2009)).
In that regard, the ballot summary should tell the voter the legal effect of the
amendment, and no more. Advisory Opinion to the Atty Gen. re Additional
Homestead Tax Exemption, 880 So.2d 646, 653 (Fla. 2004) (quoting Evans v.
Firestone, 457 So. 2d 151, 1355 (Fla. 1984)).
In this case, the County alleges first that the ballot summary is misleading
because of its reference to new contribution limits applying to candidates for
County offices. The County notes that the ordinance applies to two offices
School Board and Supervisors of Soil & Water Conservation Districtwhich are
not county offices. County Br. at 34. The Countys argument is facially insufficient.
21

Only a contention that addresses the constitutionality of all and not just a portion of
the petition can be a ground for refusing to submit the petition to the voters.
This same defect applies to the Countys complaint that the proposed
ordinance does not cover the office of County Property Appraiserone of four
County officesand leaves the law without regulation of contributions to candidates
for that office. There is no constitutional requirement that campaign finance
regulation apply equally to every office. Additionally, while the summary could
have read, County offices except the Property Appraiser for which there will now
be no limits, the ballot summary is not required to spell out all such details. To the
contrary, there is no requirement that the ballot summary explain its complete
terms at great and undue length. . . We have noted that such a requirement would
actually hamper rather than aid the intelligent exercise of the voting privilege. In
re Advisory Opinion to Atty Gen. re Limits or Prevents Barriers to Local Solar
Electricity Supply, 177 So. 3d 235, 245 (Fla. 2015) (quoting Advisory Opinion to
Atty Gen. re Right to Treatment & Rehabilitation for Non-Violent Drug Offenses,
818 So.2d 491, 498 (Fla. 2002)).
Second, the County argues that the summary is misleading in stating that it is
prohibiting large county contractors from making political contributions. The
County argues, first that the ordinances definition of a large county contractor as
one with a contact of $250,000 or more makes the summary misleading because
22

contractors with contracts of that size are not considered large under other,
unrelated County ordinances, such as the Countys Small Business Program. County
Br. at 35.
As a threshold matter, the term large county contractor in the ballot
summary is obviously intended to refer to companies that have large County
contracts. The ballot summary tells the voter that not all county contractors are
prohibited from making contributions, only those with large county contracts. The
reference is clearly to the size of the contract, not the size of the business. There is
no logical reason that anyone would assume that a definition of small business
from elsewhere in the County Code should apply in this context.
In any event, there is no reason to believe that the average voter has some
definite pre-existing conception of the size of a small versus large business. To
be sure, whether use of a term is misleading must be determined by how the public
would perceive the term. E.g., In re Advisory Opinion to Atty Gen. re Casino
Authorization, Taxation and Regulation, 656 So.2d 466, 468-69 (Fla. 1995) (public
would perceive term hotel to be narrower than transient lodging establishment).
But here there is no one, all-purpose meaning for the term small business, let alone
large county contractor. For example, for purposes of the County Small Business
Enterprise Services program, a small business enterprise is one whose three-year
average gross revenues do not exceed three different levels depending on the level
23

of contracting participation, beginning with gross revenues up to $750,000. MIAMIDADE COUNTY, FLA., CODE 2-8.1.1.1.1 For purposes of the Small Business
Enterprise Construction Services Program, the limit on 3-year average gross
revenues ranges from $5 to $10 million depending on the SIC classification of the
company. Code 10-33.02. But for purposes of the Small Business Enterprise
Architecture and Engineering Program, the limit on 3-year average revenues begins
at $500,000. Code 2-10.4.01.
Apart from County set-aside and preference programs, there are any number
of other definitions of small business of which any specific voter may be aware,
depending on his or her situation and experience. For example, for purposes of the
State Microfinance Program, small business is defined to mean a business that
employs 25 or fewer people and has average revenues over the last two years of $1.5
million or less. Section 288.9932, Fla. Stat.. For purposes of the States Equal
Access to Justice Act, small business party means a business with not more than
25 full-time employees or a net worth of not more than $ 2 million. Section 57.111,
Fla. Stat. Thus, it is simply not the case that there is, or could be, some general public
perception of what the term small business or large business means for all
purposes. In that situation, the voter is surely on notice that the term large county
contractor is one specially defined in this measure itself.

24

Similarly, the County argues that the reference to a ban on contributions by

County contractors in the summary is misleading because the summary does not note
that the ordinance also tries to prevent circumvention of that ban by covering
employees, lobbyists and family members of contractors. County Br. at 35. The
County arguesincorrectlythat the ordinance also bans contributions by these
individuals and entities to committees making independent expenditures to support
any candidate election in any race anywhere in the country. Id. at 36. That is
certainly not the case as political committee is a defined term in Florida law [cite]
that does not include federal political committees of any kind.
The failure to spell out the detailed anti-circumvention provisions in the
summary does not make it misleading. In Palm Beach County v. Hudspeth, 540
So.2d 147 (Fla. 1d DCA 1989), the ballot summary for a measure described its
purpose as establishing a county health care district to coordinate the effective
delivery of quality health care services The Court held that the terms effective
delivery and quality health care services are not inherently ambiguous. As used
in the summary, they rather obviously impart a comparative flavor to the provision
in which they are contained. 540 So.2d at 150. The Court also addressed the
argument that use of the term consolidation was misleading because for certain
portions of the County, the measure would actually create a new taxing district rather
than consolidate existing ones. The Court also noted that the summary did not
25

explain any number of other important details of the measure. The Court concluded,
however, that:
The raison detre of the summary is to give the voter an accurate picture
of the main purpose of the proposed legislation. As population grows
and technology advances the complexity of problems with which
government must cope increases proportionately. The sheer scope of a
particular legislative solution to a modern problem may therefore
relegate all but the most crucial and skeletal elements of the legislation
to the realm of voter self-education. That education must necessarily
be found outside the voters booth and preferably well in advance of
the election. Can it seriously be contended that a ballot summary not
only must explicate the main purpose of proposed legislation but also
must furnish various details that are of particular interest to one or more
groups of voters? We answer this question in the negative
Id.at 151-52.
Here, the ballot summary accurately informs voter that not all county
contractors are covered by the contribution ban, but only those with large county
contracts. Given that the mere mention of $250,000 number in the summary would
itself be misleading without more explanation (life of the contract, bids, etc.), the
voter is appropriately put on notice to look for the specific definition in the text of
the measure itself, if the voter cares. Similarly, a voter connected in some way with
a county contractor would be put on notice to look for the applicable details in the
language of the ordinance itself. In these circumstances, the reference to large
county contractors in the ballot summary is not misleading.
Finally, the county contends that the summary presents an impermissible
emotional appeal to the voters, by initially stating statement of the chief purpose
26

of the measure in the ballot summary addressing the appearance of ethical

impropriety in county governmentis an impermissible editorial comment or
expression about the merits of the measure. That view fails to recognize the clear
distinction the courts have drawn between on the one hand, statements in a ballot
summary that implicitly express some view about the merits of or reasons for
supporting a proposal, and, on the other hand, accurate statements of the
fundamental policy rationale or justification for the measure. While the former are
considered impermissible, the latter have been consistently upheld.
On the one hand, an expression of opinion about the merits of the measure in
a ballot summary is considered editorial comment, and is impermissible. Thus, in
Evans v. Firestone, supra, one part of the ballot summary stated that an effect of a
measure limiting damages and expediting disposition of certain civil litigation would
be avoiding unnecessary costs.

In addition to identifying several outright

inaccuracies in the summary, the Court regarded this language as an editorial

comment, without any implied factual basis since no explanation was given of how
the expedited disposition would be more effective in avoiding costs than is the
existing summary judgment rule. 457 So.2d at 1355. The Court characterized this
wording as subjective evaluation of special impact, stating that, The political
motivation behind a given change must be propounded outside the voting booth.
Id.
27

Similarly, in Advisory Opinion to the Atty Gen. re Referenda Required for

Adoption and Amendment of Local Government Comprehensive Land Use Plans,
902 So.2d 763 (Fla. 2005), the ballot summary began with the statement, Public
participation in local government comprehensive land use planning benefits
Floridas natural resources, scenic beauty and citizens. The Court found that this
statement did nothing to explain the chief purpose of the proposed amendment,
but rather was more akin to an improper editorial comment. 902 So.2d at 771
(quoting Evans, 457 So.2d at 1355). Specifically, the Court found that the language
at issue expressed the reasons for backing the measure, as distinct from its purpose.
Id. See, to the same effect, Florida Dept. of State v. Mangat, 43 So.2d 642, 648 (Fla.
2010) (ballot summary statement that constitutional amendment on health care
would guard against mandates that dont work was ambiguous and misleading
reference to federal health care mandates, constituting political rhetoric).
On the other hand, statements of a measures fundamental policy purpose
even where those statements make factual assumptions about the existence of a
public problemhave been consistently upheld. Thus, in In re Advisory Opinion to
Atty Gen. ex. Rel. Limiting Cruel and Inhumane Confinement of Pigs During
Pregnancy, 815 So.2d 597 (Fla. 2002), the ballot summary began with the statement,
Inhumane treatment of animals is a concern of Florida citizens. The Court held
that this summary complied with the requirement that the chief purpose of the
28

measure be stated in clear and unambiguous language. 815 So.2d at 599 (internal
citations omitted).
Similarly, in Advisory Opinion to Atty Gen. re Protect People from the Health
Hazards of Second-Hand Smoke, 814 So.2d 415 (Fla. 2002), the ballot summary
began, To protect people from the health hazards of second-hand tobacco smoke,
this amendment prohibits tobacco smoking in enclosed indoor workplaces. The
tobacco companies argued that use of terms like protect and hazards constituted
impermissible political or inflammatory rhetoric. 814 So.2d at 420. The Court
disagreed, holding that use of the term hazards simply referred to possible risks,
that Florida citizens can evaluate in connection with the proposed limitations
contained with the proposed amendment. Id. at 421. The Court held that as long
as the policy rationale is clearly stated, even though it makes factual assumptions
that are controversial, the voters will ultimately determine the wisdom of the policy
alternative presented to them. If there is no risk or chance of harm from such
conditions [secondhand smoke], the voters voice will certainly be heard. Id. See,
to the same effect, Advisory Opinion to the Atty Gen. re Protect People, Especially
Youth, from Addiction, Disease and Other Health Hazards of Using Tobacco, 926
So.2d 1186, 1194 (Fla. 2006) (upholding ballot summary beginning, To protect
people, especially youth, from addiction, disease and other health hazards of using
tobacco).
29

Significantly, in Comprehensive Land Use Plans, the Supreme Court

explained its prior holdings in the Inhumane Confinement of Pigs and Second-Hand
Smoke cases in terms that make clear the distinction between comments on the merits
and accurate expression of the central policy rationale for a measure: Addressing
the inhumane treatment of animals and the hazards of second-hand smoke were not
only the sponsors reasons for advancing these amendments, but were also the chief
purposes of the amendments themselves. 902 So.2d at 771 (emphasis added).
Again, in Advisory Opinion to Atty Gen. re Florida Marriage Protection
Amendment, 926 So.2d 1229 (Fla. 2006), the ballot summary began, This
amendment protects marriage as the legal union of only one man and one woman
Opponents argued that use of language like protect constituted misleading
political rhetoric by inviting an emotional response 926 So.2d at 1239. The
Court disagreed holding that this language simply represented an accurate statement
of the policy purpose of the amendment: preserving the current concept of marriage
in Florida as the legal union of one man and one woman. Id. at 1240.
And yet again, in OConnell v. Martin County, 84 So.2d 463 (Fla. 4th DCA
2012), the ballot summary for a proposed tax exemption ordinance stated that its
purpose would be to encourage job creation, even though the direct and immediate
effect was to make it less expensive to undertake real estate development in the
county. The DCA agreed with the trial court that the primary legal effect of the
30

ordinance is job creation, because new and expanding businesses create new jobs,
and the ballot summary provided fair notice of this effect. 84 So.3d at 466. Thus,
the ballot title and summary fairly inform the voters of the chief purpose of the
ordinance and do not commit a fraud on the public. Id.
In the case of the Initiatory Petition at issue, it is clear that the phrase
addressing the appearance of ethical impropriety in county government expresses
the fundamental policy purpose of the measure, not an opinion on its merits. This
measure would limit campaign contributions; substantially change the Countys
existing election trust fund system; prohibit larger county contractors from making
campaign contributions to candidates for county offices; amend reporting
requirements; and change the county gift rules. What is the chief purpose of this
measure? To say that any one of these mechanical components represents the chief
purpose would itself be misleading. Rather, the fundamental policy purpose of this
measure must be, and is to combat the appearance of corruption. The ballot
summary uses the term ethical impropriety, a less emotionally and more politically
neutral expression than corruption. And it makes clear that there is no implication
that anyone is actually corrupt, but simply that to enhance public confidence in the
democratic process, the appearance of ethical impropriety is the problem to be
addressed by this measure. That, literally, is its chief purpose.

31

Indeed, by definition, to be constitutionally permissible in the first instance,

the chief purpose of this measure must be to address either the reality or appearance
of corruption. For more than 40 years, since the leading case of Buckley v. Valeo,
424 U.S. 1 (1976), it has been recognized by the U.S. Supreme Court, and widely
accepted, that contribution limits serve as anti-corruption measures. With respect to
limitation of campaign contributions, [t]his Court has identified only one legitimate
governmental interest for restricting campaign finances: preventing corruption or the
appearance of corruption. McCutcheon v. Federal Election Commn, 134 S. Ct.
1434, 1450 (2014). With respect to establishment of a public financing system for
political campaigns, the only permissible purpose for such a system, again, is to
combat the appearance or reality of corruption--not to level the playing field
among candidates. Arizona Free Enterprise Clubs Freedom PAC v. Bennett, 564
U.S. 721, 753-55 (2011). And a ban on contractor contributions was upheld only
because it was designed to combat both actual corruption and the appearance of
corruption caused by contractor contributions, which has been recognized as a
legitimate reason to restrict campaign contributions. Green Party of Conn. v.
Garfield, 616 F.3d 189, 200 (2d Cir. 2010) (upholding portion of Connecticut law
banning contractor contributions).
To be sure, there is an implicit assumption in the ballot summary language
that there is or could be a problem of appearance of ethical impropriety in Miami32

Dade County government. But voters can judge that for themselves, just as the Court
left it to the voters to evaluate whether there are hazards of second-hand smoke
that justify the policy alternative of limiting smoking in indoor areas. Second Hand
Smoke, 814 So. 2d at 421. Similarly, although someone might agree or disagree that
confinement of pregnant pigs is inhumane, or is not a problem, the Court, in
Inhumane Confinement of Pigs upheld the statement, in the ballot summary, that
inhumane treatment is a concern of Florida citizens.

As the Court in

Comprehensive Land Use stated in explaining its decisions in Inhumane

Confinement and Second Hand Smoke, that kind of language was not an argument
on the merits but was legitimate ballot summary language because it referred to the
actual chief policy purpose of the measure. Comprehensive Land Use,
For these reasons, the alleged defects in the ballot summary do not constitute
grounds for the Board to keep the proposed ordinance off of the ballot.
IV.

THE COUNTY IS LEGALLY REQUIRED TO PLACE THE

PROPOSED ORDINANCE ON THE NOVEMBER 2016 GENERAL
ELECTION BALLOT

The County contends that Petitioners failed to demonstrate an entitlement to

have their ballot question placed on the November 2016 ballot. County Br. at 24.
In fact, the Petitioners have demonstrated such an entitlement, in the current posture
of this case.

33

A. Within 30 Days After the Signed Petitions Are Submitted, the Board
Must Have Them Counted and Adopt the Ordinance or Put It on the
Ballot
MIAMI-DADE COUNTY, FLA. HOME RULE CHARTER 8.01(3) provides that,
The signed petition shall be filed with the Board which shall within 30 days order
a canvass of the signatures thereon to determine the sufficiency of the signatures. 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.
This provision could be read as requiring the Board to issue the order within 30 days
after the signatures are submitted, but the only permissible reading is that the Board
is to issue an order requiring the canvass to be completed within 30 days of the date
the signatures were submitted.
Section 8.01(4) of the Charter provides that the Board has the option within
30 days after the date a sufficient petition is presented, to adopt the ordinance as
submitted. If the Board does not adopt the ordinance, the proposal shall be placed
on the ballot without further action of the Board. If the Board had 30 days merely
to issue the order and the Supervisor of Election, had additional time after that to
complete the canvass, it would be impossible for the Board to know whether the
petition as presented i.e., the signed petitions as submitted to the Board-- was
sufficient and then to decide whether to adopt the ordinance, within the prescribed
period of 30 days after the date the signatures were presented. Further, that the
34

Charter provision requires the measure to be placed on the ballot without further
action of the Board if the Board receives a sufficient petition and does not adopt
the ordinance within 30 days of the date the signatures are submitted, also would
make no sense unless the canvass is completed within 30 days of that date.
It is a fundamental rule of statutory construction that related statutory
provisions must be read together to achieve a consistent whole. Raymond James
Financial Servs., Inc. v. Phillips, 126 So.3d 186, 191 (Fla. 2013) (quoting Heart of
Adoptions, Inc., v. J.A., 963 So.2d 189, 198 (Fla. 2007)). [W]here possible, courts
must give full effect to all statutory provisions and construe related statutory
provisions in harmony with one another. Woodham v. Blue Cross & Blue Shield
of Fla., Inc., 829 So.2d 891, 898 (Fla. 2002) (quoting Forsythe v. Longboard Key
Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla. 1992)). In this case, unless
section 8.01(3) of the County Charter is read to require the canvass of signatures to
be completed within 30 days of the date the signatures are submitted, it would be
impossible for the Board to comply with section 8.01(4) of the Charter. The only
permissible reading of County Charter section 8.01(3) accordingly is that the SOE
is required to complete the canvass within 30 days of the date the signatures are
submitted, requiring the Board to order the canvass to commence in sufficient time
for the SOE to meet that deadline.
B. Even if the Board Has an Additional 30 Days to Decide Whether to Adopt
the Ordinance or Put it on the Ballot, That Time Expired September 7
35

The County argues that Petitioners interpretation 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. County Br. at 22. But even
if the Board had an extra 30 days, after the Supervisor of Election had certified that
there are sufficient signatures, to decide whether to adopt the ordinance that time
had expired, in this case, before the trial courts decision because the Board had
determined that the Petition was legally sufficient. In other words, even under the
Countys construction of the Charter, the obligation to place the petition on the ballot
became ripe on September 7, because the Board did exercise its right to decide
whether to simply adopt the ordinance and by its vote rejected the opportunity to do
so.
On September 6, the Supervisor of Elections certified to the Board that a
sufficient number of signatures had been submitted.

Supp. Appx at 2. On

September 7, the Board determined that the Petition was nevertheless legally
insufficient. County Br. at 11.

If, as Petitioners contend, the Petition not wholly

unconstitutionaland qualified under the applicable Charter provisions to appear

on the ballotthen the Board has finally declined to adopt the ordinance as
submitted and mandamus is the remedy to determine the propriety of the Boards
refusal to comply with the Charter. Under section 8.01(4) of the Charter, the Board
36

then has a mandatory duty to place the measure on the ballot, and under Miami-Dade
County, Fla., Home Rule Charter 8.01(5)(a), that election must be the next
scheduled county-wide election, meaning, in this case, the November 8, 2016
general election.
C. The Countys Interpretation of the Charter Is Illogical and Contrary to
the Fundamental Purposes of the Charter Provision
According to the County, the process for citizens to place an ordinance on the
ballot by petition is to unfold in nine steps as follows:
(1) Submission to the Clerk for approval as to form
(2) A public hearing on the proposal
(3) Collection and submission of signatures within 120 days after Clerk approval
(4) Board of County Commissioners has 30 days just to order the Supervisor of
Elections to begin the review of signatures
(5) Supervisor of Elections then has another 30 days to initially canvass the
petitions for various defects as to form
(6) Supervisor of Elections then has an unlimited albeit reasonable time to
canvass the petitions for defects relating to signatures
(7) The Board then has the chance to determine the legal sufficiency of the
petition, including revisiting the matters already determined by the County
Clerk
(8) If the Board determines the petition is sufficient, it then has 30 days to adopt
the ordinance
(9) Only if that 30 days has expired, can the Board place the measure on the ballot
County Br. at 2-3, 29.
Under this the Countys interpretation of the County Charter, once signed
petition forms have been turned in, within the allotted 120-day period of time, the
Supervisor of Elections has a limitless amount of time in which to review the petition
forms to determine if a sufficient number of valid signatures has been submitted.
37

Then, after that indeterminate, limitless period, even if the petitioners proposing the
ordinance have submitted a sufficient number of valid signatures-- meaning they
have collected tens of thousands of signatures on petition forms pre-approved by the
County Clerk--those petitioners then risk having all the signed petition forms thrown
out after the signed petitions have been collected, at great trouble and expense, based
on a post-hoc determination of legal insufficiency by the Board.
That interpretation makes no sense. The County Charter clearly contemplates
that if enough signatures are submitted in the allotted time, and the Board does not
adopt the proposed ordinance, the ordinance will be placed on the ballot in the next
scheduled county-wide election. That is the fundamental right of proposing an
ordinance by petition.
Under the Countys interpretation, however, two things are true. First, there
literally is no deadline by which citizens proposing an ordinance could be guaranteed
that their ordinance will either be adopted into law or put on the ballot in the next
election as promised by the Charter. Petitioners could have submitted the form of
petition in January and the signatures on February 1.

Under the Countys

interpretation, there would be still be no obligation to put the measure on the

November general election ballot, because the Supervisor of Elections could take
any number of months or years to complete the review of signatures. To read the
Charter as making it impossible for petitioners ever to know what ballot their petition
38

will be on, is completely illogical. Such an interpretation is impermissible. See

Diamond Aircraft Indus., Inc. v. Horowitch, 107 So. 3d 362, 371 (Fla. 2013)(court
will not accept statutory interpretation that enders an absurd and unreasonable
result); Fla. Dep't of Envtl. Prot. v. ContractPoint Fla. Parks, LLC, 986 So.2d 1260,
1270 (Fla. 2008) (We have long held that the Court should not interpret a statute in
a manner resulting in unreasonable, harsh, or absurd consequences.)
Second, it is manifest that the purpose of the pre-approval as to form of the
petition by the Clerk (MIAMI-DADE COUNTY FLA., HOME RULE CHARTER 8.01(1))
is so that petitioners can know the form of the petitionthe ballot title, summary
and languageare sufficient before they invest the months of effort and substantial
sums, and hard work by dozens or hundreds of workers and/or volunteers, necessary
to collect the requisite signatures. Again, a contrary reading, undercutting the
manifest purpose of the Charter pre-approval provision, makes no sense. Again,
such an interpretation is impermissible.
Moreover, the Countys interpretation would frustrate and defeat the
fundamental purpose of the Charter provision guaranteeing to the citizenry of the
County the power to propose to the Board of County Commissioners passage or
repeal of ordinances and to vote on the question if the Board refuses action. Id.
8.01-Preamble. The right to propose an ordinance through initiatory petition is

39

no right at all if the County can delay indefinitely putting the measure on the ballot
or decide willy-nilly to throw out tens of thousands of signed petitions that had
already been found by the authorized officialthe Clerkto meet applicable
requirements as to form. An interpretation that thus defeats, rather than carries out,
the purpose of the Charter is equally impermissible. See, e.g., Reeves v. State, 957
So. 2d 625, 629 (Fla. 2007) (citing Lewis v. Mosley, 204 So.2d 197, 201 (Fla.1967))
([S]tatutory enactments are to be interpreted so as to accomplish rather than defeat
their purpose.)
Finally, as noted, the Board has no power to keep a measure off the ballot for
legal insufficiency unless it finds that the measure is entirely unconstitutional.
Wright v Frankel, Supra; City of Boca Raton, supra. In this case, the County
Attorney never advised the Board, at its September 7 meeting or at any other time,
of any specific constitutional defects with the measure. And as explained below, the
measure is constitutional.
V.

THE MEASURE IS CONSTITUTIONAL

The County contends that the proposed ordinance itself is unconstitutional

under the First Amendment, because it prohibits a range of individuals and entities
associated with County contractors from contributing to candidates and political
committees, including committees making independent expenditures. Under the
long-standing analytical framework established in Buckley v. Valeo, 424, U.S. 1
40

(1976), for the review of contribution restrictions, the proposed ban on contributions
from certain large county vendors is constitutional as it is narrowly tailored to
advance Miami-Dades important interest in preventing actual and apparent
corruption.
The proposed ordinance bars a county vendor that is a party to, or has
submitted a bid to be awarded, a contract equal to or exceeding $250,000 in value
from making a contribution to a candidate for County Office or a political committee
(subject to certain exceptions).2 Appx at 97-98. The restriction applies for the
duration of the contract and within a two-year period following completion of such
contract. The contribution restriction also applies to a Principal of a County
Vendor, defined to include: (i) any corporate officer or member of the board of
directors; (ii) any person who has an ownership interest or voting interest of five
percent or more; (iii) employees with managerial or discretionary responsibilities
with respect to the receipt or expenditure of county funds; (iv) the spouse or child of
the individuals described in the foregoing; (v) any lobbyist employed the county
vendor and the lobbyists employees or contractors lobbying on behalf of the county

Contrary to the Countys assertions, the prohibition does not extend to contributions to a
political committee advocating the election or defeat of a candidate for federal office. See
definition of Political Committee, Fla. Stat. Ann. 106.011 (16)(a) which does not apply to
federal candidates.
2

41

vendor; and (vi) any political committee established, maintained or controlled by the
individuals described in the foregoing. Appx at 97-98.
Campaign activity by contractors and potential contractors is widely
perceived to pose a threat of political corruption. See, e.g., Wagner v. FEC, 793 F.3d
1, 17 (D.C. Cir. 2015), cert. denied Miller v. FEC, 136 S. Ct. 895 (2016) (noting the
impressive, if dismaying record compiled by Federal Election Commission of payto-play contracting scandals). Federal campaign finance law has prohibited
contributions from both actual and prospective federal contractors for over seventyfive years. Id. at 12-13; 52 U.S.C. 30119(a).
The Courts have repeatedly upheld restrictions on government contractors.3
Most recently, the D.C. Circuit Court of Appeals held in Wagner that the broad
federal ban on contributions from governmental contractors was constitutional. 793

The proposed ordinance is significantly narrower than comparable pay-to-play laws in terms of
its focus on large contractors and its relative high threshold of $250,000 for coverage. Although
some state laws also establish minimum thresholds for the value of a contract, many are
considerably lower than $250,000. See, e.g., Conn. Gen. Stat. 9-612(g)(1)(C). Further, a
number of such pay-to-play measures, including federal law, encompass all contracts, regardless
of value. 52 U.S.C. 30119(a)(1); see also Haw. Rev. Stat. 11-355. Additionally, analogous
state contribution restrictions often apply not only to the contracting entity but also to various
principals of the contractor and their family members, as the proposed ordinance does. For
example, Connecticuts ban covers the contracting entitys board members, officers, managers,
and those with a 5% ownership stake, and their immediate family members (spouses and
dependent adult children), as well as any political committees established by the contractor or its
principals. Conn. Gen. Stat. 9-612(g)(1)(F). See also, e.g., 30 Ill. Comp. Stat. 500/50-37(a)
(covering those with 7.5% controlling interest, officers, subsidiaries and associated nonprofits,
and their spouses and minor children); N.J. Stat. Ann. 19:44A-20.17 (covering those with 10%
ownership interest, subsidiaries and any section 527 organizations controlled by the business
entity, and the immediate family of individual contractors).
42

F.3d 1. The law bans contributions to to any political party, committee, or

candidate for public office or to any person for any political purpose from persons
with contracts with the federal government, of any size, from the negotiation of the
contract to its completion. 52 U.S.C. 30119(a)(1). Applying closely drawn
scrutiny, the D.C. Circuit found that the federal ban was closely tailored to advance
the governments dual interests in preventing quid pro quo corruption and its
appearance, and protecting the integrity of a merit-based procurement process. As
the court noted, the contracting context greatly sharpens the risk of corruption and
its appearance: unlike members of the general public, contractors seek a very
specific quo for which the contribution may serve as the quid: the grant or retention
of the contract. Id. at 22. The U.S. Supreme Court rejected a petition for certiorari
seeking review of the decision, Miller v. FEC, 136 S. Ct. 895 (2016), allowing the
D.C. Circuits ruling to stand.
In Green Party of Connecticut v. Garfield, 616 F.3d 189 (2d Cir. 2010), the
Second Circuit Court of Appeals reviewed a Connecticut law banning contributions
from state contractors very similar to the proposed ordinance here. Connecticut law
applied not just to the contracting individual or entity, but also to certain principals
and immediate family members of such principals, as well as political committees
established by such principals. Id. at 202, 194 n.3 (citing Conn. Gen. Stat. 9
612(g)(2)). The law included a minimum threshold for the size of regulated
43

contracts, but it was relatively low, at $50,000, which in effect meant that it regulated
even small contractors. Conn. Gen. Stat. 9-612(g)(1)(C). The court nevertheless
found that Connecticut had a valid anti-corruption interest in its ban, holding that
even imposition of an outright ban on contributions by contractors, prospective
contractors, and their principals . . . is closely drawn to the state's interest in
combating the appearance of corruption. 616 F.3d at 205 (internal citations
omitted).
State courts have likewise sustained strict contractor contribution limits. See
In Re Earle Asphalt Co., 950 A.2d 918, 325 (N.J. Super. App. Div. 2008), affd, 966
A.2d 460 (N.J. 2009) (per curiam). Relatedly, state courts have also upheld a range
of contribution restrictions applicable to certain highly regulated industries deemed
to pose a heightened threat of political corruption. See, e.g., Casino Assn of La. v.
State ex rel. Foster, 820 So.2d 494 (La. 2002) (upholding state law prohibiting any
political contributions from officers, directors, and certain employees in the casino
industry, and their spouses); Schiller Park Colonial Inn, Inc. v. Berz, 349 N.E.2d 61
(Ill. 1976) (upholding law prohibiting political contributions from any officer,
associate, agent, representative, or employee of a liquor licensee).
The relevant case law thus makes clear that the proposed ordinance is well
within the range of pay-to-play laws that have been found constitutional. As noted
in the discussion above, in many respects, the proposed ordinance is more narrowly
44

tailored than many of the analogous state and local laws that have been upheld by
recent appellate decisions. The proposed ordinance is consistent with contractor
contribution restrictions in comparable jurisdictions that have repeatedly been
upheld by the Courts. Therefore, the proposed ordinances restriction on county
vendors is constitutional.
VI.

THE WRIT OF MANDAMUS WAS PROPERLY ISSUED

For the reasons set forth above, the Board did not have legally sufficient
grounds to prevent the proposed ordinance from being put on the ballot. On
September 7, the Board nevertheless decided not to adopt the ordinance and not to
put it on the ballot. Under the Charter, the Board had no legal authority whatsoever
to take that action. To the contrary, Petitioners had a clear legal right to have the
measure placed on the ballot by the Board; the Board had an indisputable legal
duty to do so; and there was no other adequate legal remedy available to Petitioners.
E.g., Hatten v. State, 561 So.2d 562 (Fla. 1990). Under those circumstances, the
writ of mandamus was properly issued. As the Court explained in Wright v. Frankel,
in holding that a writ of mandamus should have issued to force the City to put the
measure on the ballot: Mandamus is an appropriate remedy to compel the
performance of a ministerial act that an agency has a clear legal duty to perform. A
duty or act is defined as ministerial where there is no room for the exercise of
discretion, and the performance being required is directed by law. 965 So.2d at 370
45

(quoting Shulmister v. City of Pompano Beach, 798 So.2d 799, 802 (Fla. 4th DCA
2001) (internal citations omitted).
Apart from denying the existence of the clear legal right of Petitioners and
legal duty of the Board, the County contends the writ was improperly issued for three
other reasons: (a) that the trial court failed to follow procedural requirements; (b)
that the trial court improperly relied upon disputed facts; and (c) that the trial court
failed to defer to the Countys interpretation of the charter. None of these is grounds
for setting aside the writ.
A. In the Instant Emergency Circumstances, the Trial Courts Omission of
a Formal Alternative Writ Does Not Warrant Reversal.
The County seeks reversal on two procedural grounds: a claim that the
Amended Petition for Writ of Mandamus should have been dismissed because it was
premature since the County had not yet completed counting the petitions and that
the order issued is defective because the trial court did not formally issue an
alternative writ as required by Fla. R. Civ. P. 1.630(d)(2). The first ground is
nonsense. The Amended Petition was filed on September 2, 2016 after the County
failed to count the petitions within the 30 days required by Charter section 8.01(3)
after they were filed with the Board on August 2, 2016. There was an indisputable
dereliction by the County, an emergency created by the approaching November
election deadlines and the trial court properly found it appropriate to order the
County to appear. The Amended Petition was not premature when filed and the
46

Countys subsequent determination on September 6 that there were 55,835 valid

petitions only reinforces this conclusion.
The County does correctly cite case law stating that the issuance of an
alternative writ is a required procedural step. These cases are all concerned with
protecting defendants due process rights. None of these cases involve emergency
matters and none involve the right to voteperhaps the most fundamental right in
our democracy. None of these cases involve a defendant who was afforded and took
advantage of the opportunity to raise all available defenses or a defendant who
despite ample opportunity studiously avoided ever raising the need for an alternative
writ with the trial court even after the trial courts express advice that whether to
place the petition on the ballot was going to be decided. The Countys primary
authority, in the same sentence it quotes, recognizes an exception to strict adherence
to procedural requirements when as here, only matters of law are at issue. Conner v.
Mid-Florida Growers, Inc. 541 So. 2d 1252, 1256 n.7 (Fla. 2d DCA 1989).
While the County complains that it only received 48 hours noticea lifetime
in an emergency, it filed a lengthy brief which failed to make any assertion of
prejudice from the lack of an alternative writ. Appx at 65-191. It did so in response
to a court order to submit a brief (Supp. Appx at 5), which effectively fulfilled the
purpose of the alternative writ by placing the County on notice that it needed to
defend its interests. It appeared at a lengthy hearing in which it was provided ample
47

opportunity to make any arguments. The County did not at any time advise the court
that it was waiting for the issuance of an alternative writ and instead engaged in the
ambush tactics repeatedly condemned by this Court. Capital Bank v. G & J
Investments Corp., 468 So. 2d 534, 535 (Fla. 3d DCA 1985). The appellant here is
the government. Its tactics should not be rewarded to accomplish a deprivation of
voting rights.
The procedural rules are to be construed to secure the just determination
of every action. Fla.R.Civ.P. 1.010. As the commentary states, the procedural law
is not an end in itself; it is only a means to an end. And that end is the proper
administration of substantive law. Id. Appellees respectfully submits that in these
circumstances, the omission of a formal alternative writ be excused or deemed
waived by the County to respect the thousands of voters who seek to exercise their
constitutional rights in the November election.
B. The Trial Court Did Not Improperly Rely Upon Disputed Facts
The County notes that the Court incorrectly suggested the Board approved
the petition as to form at a meeting on May 17, 2016. While that is not accurate,
there is nothing in the trial courts decision that suggests that the court in any way
relied on that fact in reaching its decision. Second, the County challenges the trial
courts failure to note that the Board held a special meeting on August 22 to discuss
sufficiency. Again, that meeting had no bearing on the courts decision. Finally, the
48

County argues that the trial court misinterpreted the Countys legal argument about
the legislative history of the Charterhardly a disputed issue of fact. Contrary to
the Countys argument, County Br. at 21, none of the trial courts decision was
premised upon any of these points.
C. The Trial Court Properly Did Not Defer to the Countys Interpretation
of the Charter
The County complains that the trial court failed to give proper deference to
the Countys interpretation of the Charter, citing the principle that the Countys
interpretation of its own ordinance is entitled to deference. County Br. at 22
(quoting Donovan v. Okaloosa County, 82 So. 3d 801, 807 (Fla. 2012)). While the
Countys interpretation of its own ordinance is indeed normally entitled to deference,
that deference does not apply to the interpretation of a self-executing constitutional
provision where care must be taken to limit the authority of the Board and avoid
weaken[ing] the power of the initiative process. Citizens Proposition for Tax
Relief v. Firestone, 386 So. 2d 561, 566-67 (Fla.1980). Indeed deference is simply
improper in this context. More generally, deference also is improper when the
Countys interpretation is clearly erroneous or when the interpretation cannot be
reconciled with the plain language of the Charter. M.T. v. Agency for Persons with
Disabilities, No. 3D15-2360, 2016 WL 4446014, at *1 (FLA. 3d DCA 2016) (citing
Verizon Fla., Inc. v. Jacobs, 810 So.2d 906, 908 (Fla.2002)); Verizon Bus.
Purchasing, LLC v. Dep't of Revenue, 164 So.3d 806, 812 (Fla. 1st DCA 2015)
49

(Judicial deference does not require that courts adopt an agency's interpretation of
a statute when the agency's interpretation cannot be reconciled with the plain
language of the statute.).
In this case, as noted, the Countys interpretation of the Charter is wholly
illogical and would defeat and frustrate the fundamental right of initiative that the
Charter intends to confer on the citizenry. For this reason, the trial court did not err
in declining to accord deference to the Countys interpretation of the Charter.
CONCLUSION
As the County concedes, there is still sufficient time for the Supervisor of
Elections to put the proposed ordinance on the ballot. County Br. at 49 (Supervisor
has until September 17 to prepare ballots for printing). For the reasons set forth
above, there is no legal basis to keep the proposed ordinance off of the November
2016 general election ballot. Accordingly, the trial courts Order granting a writ of
mandamus, should be affirmed.
Respectfully submitted,
/s/ Joseph S. Geller
JOSEPH S. GELLER
Fla. Bar. No. 292771
GREENSPOON MARDER, P.A.
200 East Broward Blvd, Suite 1800
Fort Lauderdale, FL 33301
Tel: 954.491.1120
Joseph.Geller@gmlaw.com
S/ Benedict P. Kuehne
50

BENEDICT P. KUEHNE
Florida Bar No. 233293
MICHAEL T. DAVIS
Florida Bar No. 63374
LAW OFFICE OF BENEDICT P.
KUEHNE, P.A.
100 S.E. 2nd St., Suite 3550
Miami, FL 33131-2154
Tel: 305.789.5989
Fax: 305.789.5987
ben.kuehne@kuehnelaw.com
efiling@kuehnelaw.com
/s/ Andrew L. Gordon
Andrew L. Gordon
Florida Bar No. 309761
VER PLOEG & LUMPKIN, P.A.
100 S.E. Second Street, Suite 3000
Miami, FL 33131
Tel: (305) 577-3996
Fax: (305) 577-3559
agordon9@gmail.com
iromero@vpl-law.com
S/ Joseph E. Sandler
JOSEPH E. SANDLER
Pro Hac Vice Motion to be Filed
DARA LINDENBAUM
Pro Hac Vice Motion to be Filed
Sandler, Reiff, Lamb, Rosenstein &
Birkenstock PC
1025 Vermont Ave., N.W. Suite 300
Washington, D.C. 20005
Tel: 202 479 -1111
Fax: 202-479-1115
sandler@sandlerreiff.com
lindenbaum@sandlerreiff.com

51

CERTIFICATE OF SERVICE
Undersigned counsel certifies that a true and correct copy of the foregoing
Response Brief was served by e-mail on September 13, 2016.
Oren Rosenthal and Michael B. Valdes
Assistant County Attorneys
Miami-Dade County Attorneys Office
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
/s/ Joseph S. Geller
JOSEPH S. GELLER
CERTIFICATE OF COMPLIANCE
Undersigned counsel certifies that the brief complies with the font
requirements in Fla. R. App. P. 9.210.

/s/ Joseph S. Geller

JOSEPH S. GELLER

52