Miami Heat Ltd. Partnership v. Leahy

• Decision Date: 24 October 1996
• Docket Number: Nos. 96-2803,96-2804,s. 96-2803
• Citation: 682 So.2d 198
• Parties: 21 Fla. L. Weekly D2326 MIAMI HEAT LIMITED PARTNERSHIP, a Florida limited partnership, Basketball Properties, Ltd., a Florida limited partnership, and Pauline Winick, Appellants, v. David C. LEAHY, as Supervisor of Elections of Metropolitan Dade County, Florida, Appellee, and Stop New Arena Committee, Intervenor.
• Court: Florida District Court of Appeals

Page 198

682 So.2d 198

21 Fla. L. Weekly D2326

MIAMI HEAT LIMITED PARTNERSHIP, a Florida limited partnership, Basketball Properties, Ltd., a Florida limited partnership, and Pauline Winick, Appellants, v. David C. LEAHY, as Supervisor of Elections of Metropolitan Dade County, Florida, Appellee and Stop New Arena Committee, Intervenor.

Nos. 96-2803, 96-2804.

District Court of Appeal of Florida Third District.

Oct. 24, 1996.

Bruce S. Rogow, Fort Lauderdale; Holland & Knight and Daniel S. Pearson, Miami, for appellants.

Robert A. Ginsburg, County Attorney, and Steven B. Bass and Jess M. McCarty, Assistant County Attorneys, for appellee.

Jorden, Burt, Berenson & Johnson and Dan Paul; Baker & McKenzie and Richard J. Ovelmen; Zack, Sparber, Kosnitzky, Spratt & Brooks, Miami, for intervenor.

Before SCHWARTZ, C.J., and NESBITT and SHEVIN, JJ.

NESBITT, Judge.

On September 25, 1996, Miami Heat Limited Partnership, Basketball Properties, Ltd., and Pauline Winick (hereinafter "appellants") brought an action for declaratory judgment and filed an emergency motion for permanent injunction to prohibit David H. Leahy, as Supervisor of Elections, from placing a ballot question prompted by an Initiative Petition on the upcoming November 5, 1996 general election ballot. ¹ The trial court held a hearing on appellants' motion for injunction on October 4, 1996. As a result of that hearing the trial court entered the order now sought to be reviewed. In it, the court decided to allow the election to proceed with the disputed question on the ballot while at the same time reserve ruling on "the legality of the ballot question."

I.

Appellants seek alternative remedies in this court. In Case No. 96-2804 appellants have filed a petition for a writ of mandamus in which they seek to force the trial court to rule on their request for injunctive relief prior to the election. In Case No. 96-2803, appellants have filed a notice of appeal under Florida Rule of Appellate Procedure 9.130(a)(3)(B) arguing that the trial court's order is an effective, though not express, denial of their request for injunctive relief. Thus, our first task is to decide the question of our jurisdiction.

The order sought to be reviewed provides in pertinent part as follows:

1. Without ruling on the legality of the ballot question at this time, the Court will permit the election to proceed with the instant question on the ballot.

2. The Court will review all of the arguments of the parties and the case law to make an ultimate ruling as to its legality. A ruling will be published subsequent to the election.

Rule 9.130(a)(3)(B) of the Florida Rules of Appellate Procedure provides:

(a) Applicability.

(3) Review of non-final orders of lower tribunals is limited to those that

(B) grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunctions....

Clearly, the order in question does not by its terms "deny" an injunction. In support of their argument that we may treat the order as an appealable nonfinal order, the appellants have cited to analogous federal authority.

Codified in a federal statute, the relevant provision allowing for appeal of an order denying an injunction provides as follows:

§ 1292. Interlocutory decisions

(a) Except as provided in subsections (c) and (d) of this section, the courts of appeals shall have jurisdiction of appeals from:

(1) Interlocutory orders of the district courts of the United States, ... or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court.

28 U.S.C.S. § 1292(a)(1) (Law.Co-op.1996). This court has previously held that where, as here, state rules are "closely patterned" on their federal counterparts, decisions and commentaries interpreting the federal rules are persuasive in construing the state rules. ² Dinter v. Brewer, 420 So.2d 932, 934 n. 2 (Fla. 3d DCA 1982)(citing Gross v. Franklin, 387 So.2d 1046, 1048 n. 6 (Fla. 3d DCA 1980)).

Reviewing the relevant decisions, one jurist has succinctly noted:

Federal courts have interpreted [28 U.S.C.S. § 1292(a)(1) ] to mean that if an interlocutory order expressly grants or denies a request for injunctive relief, the losing party has a right to direct appeal, but that if the interlocutory order does not do so, the losing party only has the right to direct appeal if the litigant can show that the interlocutory order has the practical effect of granting or denying an injunction; that the interlocutory order might have serious, perhaps irreparable, consequences; and that the order can be effectively challenged only by immediate appeal.

Georgia Power Co. v. Hunt, 266 Ga. 331, 466 S.E.2d 846, 849 (1996)(Sears, J., concurring specially)(citing federal appellate decisions so holding).

Applying that test we conclude that the order in question is an appealable nonfinal order. ³ It has the practical effect of denying appellants' request for injunctive relief, as the disputed question will go on the ballot. The consequences of the order are irreparable as, if appellants contentions are taken as true, a misleading ballot question in violation of county and state law will appear on the general election ballot. Finally, the order can only be challenged by immediate appeal given the impending general election.

II.

Turning to the merits, we review the trial court's order effectively denying an injunction for an abuse of discretion. Moreover, we note that "[t]he law is well-settled that a court of equity as a general rule will not restrain the holding of an election because a free election in a democracy is a political matter to be determined by the electorate and not the courts." Metropolitan Dade County v. Shiver, 365 So.2d 210, 212 (Fla. 3d DCA 1978), affirmed, 394 So.2d 981 (Fla.1981).

Appellants' first argument is that the initiative petition ⁴ that prompted the ballot question violates section 12-12 of the Dade County Code. That section declares: "Initiative petitions proposed pursuant to Sections 7.01 or 8.07 of the Dade County Home Rule Charter shall embrace but one subject and matter directly connected therewith." Intervenor responds that the Home Rule Charter provides the sole procedure and qualifications an initiative petition must meet for submittal to the electorate; thus, section 12-12 is invalid and no single-subject requirement is applicable.

We agree with the intervenor that the Home Rule Charter provides the only method for initiating referenda on ordinances and does not impose a single subject requirement. Article VIII, section 11(1)(i) of the 1885 Florida Constitution, carried forward by Article VIII, section 6(e) of the 1968 Florida Constitution, states that the Home Rule Charter "[s]hall provide a method for ... initiative and referendum, including the initiation of and referendum on ordinances...." Section 7.01 of the Charter carries out the constitutional directive and lays out a "procedure" for Dade County electors to initiate passage of or referenda on ordinances. Nowhere in that procedure is there a requirement that initiative petitions embrace only a single subject.

A near perfect analogy to this case exists in Citizens Proposition for Tax Relief v. Firestone, 386 So.2d 561 (Fla.1980). There the appellant citizens group was attempting to place a constitutional amendment on the ballot by initiative under Article XI, section 3 of the Florida Constitution. An existing statute and administrative rule imposed certain requirements on an initiative's sponsor before the proposal would be placed on the ballot. Among these were verification procedures for the signatures found on the petition and a requirement that initiative petitions be filed with the secretary of state 122 days preceding the next general election rather than the ninety days required in Article XI, section 5, Florida Constitution.

In passing on the validity of these executive and legislative enactments, the 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).

In the instant case, section 7.01 of the Charter is a self-executing provision. It clearly establishes the right to propose by initiative petition the passage or repeal of ordinances without the aid of any legislative enactment. We conclude that section 12-12 of the Code is not "necessary to ensure ballot integrity" and that such a restriction on the initiative process would strengthen the authority and power of the County Commission but weaken the power of the initiative process. See id.

In Abreau v. Cobb, 670 So.2d 1010 (Fla. 3d DCA 1996), cause dismissed, Case No. 88,081 (Fla. Dec. 11, 1996), a recall petition was challenged on the basis that it did not state grounds for removal in violation of section 100.361(1)(b), Florida...