Miami-Dade Cnty. Bd. of Cnty. Comm'rs v. An Accountable Miami-Dade

• Decision Date: 20 September 2016
• Docket Number: No. 3D16–2090.,3D16–2090.
• Citation: 208 So.3d 724
• Parties: MIAMI–DADE COUNTY BOARD OF COUNTY COMMISSIONERS, et al., Appellants, v. AN ACCOUNTABLE MIAMI–DADE, et al., Appellees.
• Court: Florida District Court of Appeals

208 So.3d 724

MIAMI–DADE COUNTY BOARD OF COUNTY COMMISSIONERS, et al., Appellants,
v.
AN ACCOUNTABLE MIAMI–DADE, et al., Appellees.

No. 3D16–2090.

District Court of Appeal of Florida, Third District.

Sept. 20, 2016.

Abigail Price–Williams, Miami–Dade County Attorney, and Oren Rosenthal and Michael B. Valdes, Assistant County Attorneys, for appellants.

Greenspoon Marder and Joseph S. Geller, Fort Lauderdale; Ver Ploeg & Lumpkin and Andrew L. Gordon ; Benedict P. Kuehne and Michael T. Davis, for appellees.

KYMP LLP and Juan–Carlos Planas, for Eric Zichella as Amicus Curiae.

Before SUAREZ, C.J., and LAGOA and EMAS, JJ.

LAGOA, J.

Appellants, Miami–Dade County Board of County Commissioners (the "Board" or "County Commission"), Carlos Gimenez, in his capacity as Miami–Dade County Mayor, and Christina White, in her capacity as Miami–Dade County Supervisor of Elections (collectively "Appellants"), appeal from the trial court's entry of a writ of mandamus compelling Miami–Dade County to place on the November 8, 2016 General Election ballot an initiative petition submitted by Appellees, An Accountable Miami–Dade, Christian Ulvert, Tresnise Bryant, Michelle Davis and Caroline Williams (collectively "Appellees"). For the reasons set forth below, we reverse and vacate the writ.

I. FACTUAL AND PROCEDURAL HISTORY

a. The County's Initiative Petition Process

In a September 10, 2002 election, the voters of Miami–Dade County approved an amendment to their County Charter concerning the initiatory petition process. In considering the issue, the voters were presented with the following ballot question:

County Question No. 9

Charter Amendment Placing Proposed Initiative Petitions on Ballot Without Further County Commission Action

Shall the Charter be amended to provide that if an initiative petition is deemed to be legally sufficient, the proposal shall be placed on the ballot without requiring any further action by the Board of County Commissioners, unless the Board determines to adopt the proposal?

(emphasis added).

The 2002 amendment is presently codified in Section 8.01 of the Charter. Section 8.01, titled Initiative, Referendum, and Recall, provides in pertinent part as follows¹ :

208 So.3d 727

The electors of the county shall have 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, according to the following procedure:

1. The person proposing the exercise of this power 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 as the proposer may desire. A public hearing shall be held on the proposal at the next Board of County Commissioner meeting subsequent to the date the Clerk approves the petition as to form.

2. The person or persons circulating the petition shall, within 120 days of the approval of the form of the petition, obtain the valid signatures of voters in the county in numbers at least equal to four percent of the registered voters in the county on the day on which the petition is approved, according to the official records of the County Supervisor of Elections. In determining the sufficiency of the petition, no more than 25 percent of the valid signatures required shall come from voters registered in any single county commission district. Each signer of a petition shall place thereon, after his name, the date, and his place of residence or precinct number. Each person circulating a copy of the petition shall attach to it a sworn affidavit stating the number of signers and the fact that each signature was made in the presence of the circulator of the petition.

3. 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 that the petition is insufficient and has failed.

4. The Board may within 30 days after the date a sufficient petition is presented adopt the ordinance as submitted in an initiatory petition or repeal the ordinance referred to by a referendary petition. If the Board does not adopt or repeal the ordinance as provided above, then the proposal shall be placed on the ballot without further action of the Board.

b. The Current Petition Initiative

On April 26, 2016, An Accountable Miami–Dade, through Christian Ulvert, submitted an initiative petition, including proposed ballot language, to the Clerk of the Circuit Court. The petition contains the following ballot language:

Title : INITIATORY ORDINANCE PETITION, REVISING CAMPAIGN FINANCE CONTRIBUTION LIMITS AND TRUST FUND, AND BANNING CERTAIN CONTRACTOR CONTRIBUTIONS.

Summary : Should an ordinance be enacted addressing the appearance of ethical impropriety in county government; limiting campaign contributions to $250 per election per candidate to candidates for County offices; prohibiting large county contractors from making campaign contributions; amending the election campaign financing trust fund; repealing prior ordinances and resolutions in conflict; amending definition of gift; providing severability, code inclusion, and an effective date?

Two days after the petition was submitted, the Clerk of the Circuit Court (the "Clerk") in a written letter dated April 28, 2016, notified Mr. Ulvert that "[t]he petition form complies with the format determined

208 So.3d 728

by the Supervisor Of Elections. Therefore, I have enclosed a copy of the approved petition form with the Clerk's seal affixed thereto." Significantly, the Clerk further notified Appellees "the Clerk approves the petition, as to form only. This approval as to form only does not address the substance of the petition, legal sufficiency of the proposed ordinance and/or factual accuracy of any statements herein." (emphasis in original). The Clerk further directed Appellees to review Sections 3.06² and 8.01 of the Miami–Dade Home Rule Amendment and Charter (the "Charter") as well as Section 12–23 of the Miami–Dade County Code and advised Appellees that "[i]t is the responsibility of the petitioner to comply with all applicable laws governing the initiative petition process. " (emphasis in original)

After approval by the Clerk, and pursuant to Section 8.01(1) of the Charter, the subject petition was placed on the May 17, 2016 Board agenda for a public hearing.³ It is undisputed that at the May 17, 2016 meeting, the Board did not consider any motion on the petition and did not take any action with respect to the petition other than allowing Appellees and other members of the public to speak on the proposal.⁴

The Clerk's April 28, 2016 letter further informed Appellees that they had 120 days from April 28, 2016 to obtain the necessary signatures.⁵ The uncontroverted evidence in the record establishes that the Miami–Dade County Elections Department informed Appellees "that ballot questions submitted by municipalities by August 9, 2016 in final form and with all the required legal approvals would be placed on the November General Election Ballot."⁶

On August 2, 2016, Appellees filed their signed petitions with the Clerk of the Board of County Commissioners. Pursuant to Section 8.01(3) of the Charter, once signed petitions are submitted, the Board then has 30 days⁷ to "order a canvass of the signatures thereon to determine the sufficiency of the signatures."

The Board, however, cannot order a canvass unless done as an act in a duly authorized and constituted meeting.⁸ A review of the Board's 2016 Calendar shows that the regularly scheduled Board meeting of August 2, 2016 was cancelled because of the Board's July 25 through August 31, 2016 recess, and that the next regularly scheduled meeting following recess was to be held on September 7, 2016. On August 8, 2016, the Chairman of the Board circulated a call for a special meeting of the Board on August 9, 2016 to address the petition. The August 9, 2016 special meeting, however, lacked a quorum

208 So.3d 729

and was not able to be convened. On August 22, 2016, the Chairman successfully convened a special meeting for the purpose of addressing the subject petition.

At the August 22, 2016 special meeting, the Board ordered the Supervisor of Elections to canvass the submitted petitions on an expedited basis.⁹ The record establishes that at the August 22, 2016 meeting, Appellees suggested that the Board defer consideration of the petition's legal sufficiency to a later point in time.¹⁰

On September 2, 2016, before the canvass was completed and before the Board considered or determined the petition's sufficiency, Appellees filed a First Amended Petition for Writ of Mandamus. In their petition, Appellees asked the trial court to compel Miami–Dade County "to order that the campaign finance reform initiative ordinance petition be placed on the November 8, 2016 ballot or adopt the proposed ordinance if the Supervisor of Elections determines that the petition contains a sufficient...