Citizens for Ref. v. Citizens for Open Gov.

• Decision Date: 31 May 2006
• Docket Number: No. 3D05-2168.,3D05-2168.
• Citation: 931 So.2d 977
• Parties: CITIZENS FOR REFORM, etc., Appellant/Cross-Appellee, v. CITIZENS FOR OPEN GOVERNMENT, INC., Appellee/Cross-Appellant, v. South Florida AFL-CIO and Transport Workers Union of America, Local 291, AFL-CIO, Intervenors-Appellees.
• Court: Florida District Court of Appeals

931 So.2d 977

CITIZENS FOR REFORM, etc., Appellant/Cross-Appellee, v. CITIZENS FOR OPEN GOVERNMENT, INC., Appellee/Cross-Appellant, v. South Florida AFL-CIO and Transport Workers Union of America, Local 291, AFL-CIO, Intervenors-Appellees.

No. 3D05-2168.

District Court of Appeal of Florida, Third District.

May 31, 2006.

Rehearing and Rehearing En Banc Denied June 23, 2006.

Bruce S. Rogow, Fort Lauderdale; Podhurst Orseck and Robert C. Josefsberg and Stephen F. Rosenthal, Miami, for appellant/cross-appellee.

Stephen M. Cody, Coral Gables, for appellee/cross-appellant.

Coffey & Wright and Kendall Coffey; Sale & Kuehne and Benedict P. Kuehne, Miami; Phillips, Richard & Rind and Mark Richard, for intervenors-appellees.

Before WELLS, CORTIÑAS, and ROTHENBERG, JJ.

CORTIÑAS, Judge.

Appellant/Cross-Appellee, Citizens for Reform ("Appellant"), sought to submit to voters a referendum on a proposed amendment to the Miami-Dade County Charter ("Charter"). The proposed ballot language for this amendment provided as follows:

CHARTER AMENDMENT EXPANDING THE MAYOR'S RESPONSIBILITIES AND RESTRICTING THE RESPONSIBILITIES OF THE COUNTY MANAGER

Shall the Miami Dade County Charter be amended to transfer from the County Commission and County Manager to the Mayor certain additional powers and responsibilities including the authority to:

1. Administer County government;

2. Appoint the County Manager unless disapproved by supermajority of the Commission;

3. Appoint department directors unless disapproved by supermajority of the commission; except or otherwise required by law; and

4. Direct, supervise, reprimand or remove the County Manager and department directors.

Appellee/Cross-Appellant, Citizens for Open Government, Inc., filed suit and contended that the proposed amendment violated the requirements of the Florida Constitution and Florida Statutes, that the ballot summary violated the requirements of section 101.161, Florida Statutes (2005), and that the petition in support of the referendum was not properly notarized. South Florida AFL-CIO and the Transport Workers Union of America, Local 291, AFL-CIO were granted permission by the trial court to intervene. Citizens for Open Government, Inc., South Florida AFL-CIO, and the Transport Workers Union of America, Local 291, AFL-CIO are referred to collectively as "Appellees."

The Circuit Court found that the proposed ballot summary met the requirements of section 101.161, and that the petition was properly notarized. Citizens for Open Government, Inc. cross-appeals these rulings by the Circuit Court. We affirm the rulings of the trial court as to the issues on cross-appeal.

With respect to the claim that the proposed amendment violates the requirements of the Florida Constitution and Florida Statutes, the Circuit Court, after holding an evidentiary hearing, found in favor of the Appellees and enjoined the Miami-Dade Elections Department from placing the proposed amendment on the ballot. The Circuit Court found that the proposed amendment removed the Miami-Dade County Commission as the "governing body" and was, therefore, unconstitutional and unauthorized.

We review the trial court's conclusions of law and determination as to the constitutionality of the proposed amendment de novo. See, e.g., Cooper v. Dillon, 403 F.3d 1208, 1213 (11th Cir.2005); One World One Family Now v. City of Miami Beach, 175 F.3d 1282, 1285 n. 4 (11th Cir.1999) (citing Simmons v. Conger, 86 F.3d 1080, 1084 (11th Cir.1996)); State v. O'Daniels, 911 So.2d 247, 251 (Fla. 3d DCA 2005).

The Florida Constitution of 1885 Granted the Voters of Miami-Dade County Broad Home Rule Powers

The Florida Constitution of 1885 provides, with respect to Miami-Dade County, that:

The electors of Dade County, Florida, are granted power to adopt, revise, and amend from time to time a home rule charter of government for Dade County, Florida, under which the Board of County Commissioners of Dade County shall be the governing body.

FL. CONST. art. VIII, § 6(e), n. 3.¹ This section provides that, in the case of Miami-Dade County, the county charter:

[m]ay grant full power and authority to the Board of County Commissioners of Dade County to pass ordinances relating to the affairs, property and government of Dade County and provide suitable penalties for violation thereof; to levy and collect such taxes as may be authorized by general law and no other taxes, and to do everything necessary to carry on a central metropolitan government in Dade County.

Id. The Florida Constitution further provides that the section authorizing a home rule charter of government for Miami-Dade County "shall be liberally construed" to carry out the purpose of home rule for the people of Miami-Dade County in local affairs. Id.

The issue presented on appeal is whether the proposed amendment to the Charter effectively removes the Miami-Dade County Commission as the "governing body." If it does, the proposed amendment is unconstitutional as no provision of the Charter may conflict with the Florida Constitution or general Florida law. See Cook v. City of Jacksonville, 823 So.2d 86 (Fla.2002); Ellis v. Burk, 866 So.2d 1236 (Fla. 5th DCA 2004). If the proposed amendment does not remove the County Commission as the "governing body," the amendment would survive this particular constitutional challenge.

In the absence of specific statutory language, determining what constitutes the "governing body" of the County is a judicial function. As the Florida Supreme Court has held, it is the court's function to interpret the phrase "governing body." Metro-Dade Fire Rescue Serv. Dist. v. Metropolitan Dade County, 616 So.2d 966, 969 (Fla.1993). Since the Charter does not define the term "governing body," this term should be given its usual and obvious meaning. See id.; City of Jacksonville v. Glidden Co., 124 Fla. 690, 169 So. 216, 217 (1936).

There is no dispute that, at the present time, the Miami-Dade Commission serves as the "governing body." To determine whether the proposed amendment removes this authority from the County Commission, we must, therefore, first examine the current structure of government in Miami-Dade County, under which the Commission is its governing body.

The Present Structure of Miami-Dade County Government

Article 1 of the Charter provides for the existence of a Board of County Commissioners and delineates the powers afforded to the Commission. The powers afforded to the Miami-Dade County Commission, include, among others, the power to:

1. Provide and regulate arterial, toll, and other roads, bridges, tunnels, and related facilities; eliminate grade crossings; provide and regulate parking facilities; and develop and enforce master plans for the control of traffic and parking.

2. Provide and operate air, water, rail, and bus terminals, port facilities, and public transportation systems.

. . .

4. Provide central records, training and communications for fire and police protection; provide traffic control and central crime investigation; provide fire stations, jails, and related facilities; and subject to Section 1.01A(18) provide a uniform system for fire and police protection.

5. Prepare and enforce comprehensive plans for the development of the county.

6. Provide hospitals and uniform health and welfare programs.

7. Provide parks, preserves, playgrounds, recreation areas, libraries, museums, and other recreational and cultural facilities and programs.

8. Establish and administer housing, slum clearance, urban renewal, conservation, flood and beach erosion control, air pollution control, and drainage programs....

9. Provide and regulate or permit municipalities to provide and regulate waste and sewage collection and disposal and water supply and conservation programs.

10. Levy and collect taxes and special assessments, borrow and expend money and issue bonds, revenue certificates, and other obligations of indebtedness in such manner, and subject to such limitations, as may be provided by law.

...

12. Establish, coordinate, and enforce zoning and such business regulations as necessary for the protection of the public.

13. Adopt and enforce uniform building and related technical codes and regulations for both the incorporated and unincorporated areas of the county.

...

15. Use public funds for the purposes of promoting the development of the county, including advertising the area's advantages.

...

17. Enter into contracts with other governmental units within or outside the boundaries of the county for joint performance or performance by one unit in behalf of the other of any authorized function.

18. Set reasonable minimum standards for all governmental units in the county for the performance of any service or function.

...

21. Exercise all powers and privileges granted to municipalities, counties, and county officers by the Constitution and laws of the state, and all powers not prohibited by the Constitution or by this Charter.

22. Adopt such ordinances and resolutions as may be required in the exercise of its powers, and prescribe fines and penalties for violation of ordinances.

23. Perform any other acts consistent with law which are required by this Charter or which are in the common interest of the people of the county.

24. Supersede, nullify, or amend any special law applying to this county, or any general law applying only to this county, or any general law where specifically authorized by the Constitution.

These powers are consistent with the Florida Constitution provision stating that a "governing body of a county operating under a charter may enact county ordinances not inconsistent with general law." FL. CONST. art. VIII, § 1(g) (emphasis added).

Moreover, the delineation of powers afforded to the County Commission is remarkably similar to the powers afforded by statute to the "legislative and governing body" of counties under section 125.01(1), Florida Statutes (2005) (emphasis added). Under section...