Wadhams v. Board of County Com'rs of Sarasota County

• Decision Date: 30 August 1990
• Docket Number: No. 70078,70078
• Citation: 567 So.2d 414
• Court: Florida Supreme Court
• Parties: 15 Fla. L. Weekly S421 Samuel C. WADHAMS, et al., Petitioners, v. BOARD OF COUNTY COMMISSIONERS OF SARASOTA COUNTY, Florida, Respondent.

Page 414

567 So.2d 414

15 Fla. L. Weekly S421

Samuel C. WADHAMS, et al., Petitioners, v. BOARD OF COUNTY COMMISSIONERS OF SARASOTA COUNTY, Florida, Respondent.

No. 70078.

Supreme Court of Florida.

Aug. 30, 1990.

Richard E. Nelson and Richard L. Smith of Nelson, Hesse, Cyril, Smith, Widman & Herb, Sarasota, for respondent.

EHRLICH, Justice.

We have for review Wadhams v. Board of County Commissioners, 501 So.2d 120 (Fla. 2d DCA 1987), due to express and direct conflict with Askew v. Firestone, 421 So.2d 151 (Fla.1982). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

The Board of County Commissioners of Sarasota County (Board) proposed amendments to the county charter concerning meetings of the county's Charter Review Board. A special election was held on the proposed amendments on November 6, 1984. The ballot appeared as follows:

OFFICIAL BALLOT

SPECIAL ELECTION ON AMENDING ARTICLE II

SECTIONS 2.11.A AND 2.11.B OF THE SARASOTA COUNTY CHARTER

NOVEMBER 6, 1984

Shall Article II, Sections 2.11.A and 2.11.B of the Sarasota County Charter be amended as proposed by Sarasota County Ordinance No. 84-72 to read:

"Section 2.11.A Composition, Election and Term of Members. There shall be a Charter Review Board which shall by 1984 be composed of ten (10) members who shall serve without compensation and who shall be elected in the following manner: five (5) members, one residing in each of the five County Commission districts, shall be elected by the voters of Sarasota County at the general election to be held in 1982, and every (4) four years thereafter; five (5) members, one residing in each of the five County Commission districts, shall be elected by the voters of Sarasota County at the general election to be held in 1984, and every four (4) years thereafter. Members shall take office on the second Tuesday following the general election."

"Section 2.11.B Purpose, Jurisdiction and Meetings of Review Board. The Charter Review Board shall hold meetings to organize, elect officers, and conduct business only during the year, and prior to that time, in which a general election is held in 1988, and each four (4) years thereafter. The Review Board shall review the operation of the County government, on behalf of the citizens and recommend changes for improvement of this Charter. Such recommendations shall be subject to referendum in accordance with the provisions of Section 6 herein. An affirmative vote of two-thirds ( 2/3) of the members elected or appointed to the Review Board shall be required to recommend amendments for referendum. The Board of County Commissioners shall pay reasonable expenses of the Charter Review Board."

YES (Punch Card Number) NO (Punch Card Number)

The proposal received an affirmative vote from a majority of the voters.

Subsequent to the election, petitioners filed a complaint challenging the amendment to section 2.11 of the county charter, alleging that the referendum placed on the special election ballot by the Board failed to comply with the essential requirements of the general law of Florida. Specifically, petitioners challenged the fact that the Board, based upon the advice of its legal counsel, did not provide a summary of the proposed changes as required by section 101.161(1), Florida Statutes (Supp.1984). The trial court concluded that the section was mandatory and was not substantially complied with by the Board. The trial court refused, however, to invalidate the results of the referendum. The Second District Court of Appeal affirmed, stating that "the purpose of the amendment was shown to have been widely disseminated by public hearing, advance publication, and media publicity," and "[t]he fact that a ballot may be confusing to some does not mandate a court to invalidate the results of an otherwise properly conducted election." 501 So.2d at 123 (citations omitted).

Section 101.161(1) provides, in relevant part:

Whenever a constitutional amendment or other public measure is submitted to the vote of the people, the substance of such amendment or other public measure shall be printed in clear and unambiguous language on the ballot.... The substance of the amendment or other public measure shall be an explanatory statement, not exceeding 75 words in length, of the chief purpose of the measure.

(Emphasis added.) Petitioners argue that the lower courts erred in upholding the election result despite finding that the Board had failed to comply with the requirements of section 101.161(1). We agree. The above provisions of section 101.161(1) are mandatory. As this Court stated in Askew: "The purpose of section 101.161 is to assure that the electorate is advised of the true meaning, and ramifications, of an amendment." 421 So.2d at 156. "[S]ection 101.161 requires that the ballot title and summary for a proposed constitutional amendment [or other public measure] state in clear and unambiguous language the chief purpose of the measure." Id. at 154-55 (emphasis added).

In Askew, the plaintiffs appealed a trial court order validating the caption and summary of a proposed constitutional amendment scheduled to appear on the November 1982 general election ballot. The proposed amendment at issue was to remove the absolute two-year ban on lobbying by former legislators and elected officers before their former governmental bodies or agencies, as set forth in the "Sunshine Amendment" to article II of the Florida Constitution. Under the proposed amendment, the two-year ban would apply only if an affected person failed to make financial disclosure. The proposed summary of the amendment for the ballot stated that the amendment " '[p]rohibits former legislators and statewide elected officers from representing other persons or entities for compensation before any state government body for a period of 2 years following vacation of office, unless they file full and public disclosure of their financial interests.' " Id. at 153. This Court held that the joint resolution proposing the amendment was invalid and must be stricken from the ballot because the summary was "misleading to the public concerning material changes to an existing constitutional provision." Id. at 156. The problem with the summary was that it failed to inform the public that there was presently a total ban on lobbying before one's agency for two years, regardless of financial disclosure. Stated alternatively, the summary did not adequately reflect the chief purpose of the joint resolution, which was to remove the two-year absolute ban on certain lobbying activities.

The problem with the ballot in the present case is much the same as the problem with the ballot in Askew. By containing the entire section as it would actually appear subsequent to amendment, rather than a summary of the amendment to the section, the ballot arguably informed the voters that the Charter Review Board would only be permitted to meet once every four years. By failing to contain an explanatory statement of the amendment, however, the ballot failed to inform the public that there was presently no restriction on meetings and that the chief purpose of the amendment was to curtail the Charter Review Board's right to meet. Similar to the ballot summary at issue in Askew, the present ballot "is deceptive, because although it contains an absolutely true statement, it omits to state a material fact necessary in order to make the statement made not misleading." Askew, 421 So.2d at 158 (Ehrlich, J., concurring). The only way a voter would know what changes were being effected by an affirmative vote on the ballot would be to know what section 2.11 of the county charter provided prior to amendment. As then Judge Grimes noted in his dissent below: "[T]here was nothing on the ballot to inform the voter of the change to be accomplished by the amendment, which is the very reason why section 101.161(1) requires an explanatory statement." 501 So.2d at 124 (Grimes, J., dissenting). See also Kobrin v. Leahy, 528 So.2d 392 (Fla. 3d DCA) (placement on ballot of proposition to provide that the board of county commissioners shall be the governing board of the fire and rescue service district, but making no mention of the elimination of the existing governing body of the Fire and Rescue District, was misleading to voters and violated section 101.161(1), especially in light of simultaneously conducted election of persons to the existing governing board), review denied, 523 So.2d 577 (Fla.1988). Cf. Miami Dolphins, Ltd. v. Metropolitan Dade County, 394 So.2d 981, 987 (Fla.1981) (ballot was not misleading and gave voters fair notice of the decision to be made where it "contained a brief description of the tax plan, i.e., the rate, the group on whom it would be imposed, the expected revenues, and the planned expenditure of those revenues").

The Board argues that the majority in the decision below correctly concluded that there was no reason to invalidate the amendments based on voter confusion because the voters were afforded ample opportunity to become informed on the issue before the election by public hearings, advance publication of the proposal, and media publicity. We reject this argument. As this Court stated in Askew, "[t]he burden of informing the public should not fall only on the press and opponents of the measure--the ballot ... summary must do this." 421 So.2d at 156 (emphasis added). See also Evans v. Firestone, 457 So.2d 1351, 1355 (Fla.1984) ("[T]he voter must be told clearly and unambiguously ... what the amendment does.... The ballot summary should tell the voter the legal effect of the amendment...."). ¹

We also reject the Board's argument that the favorable vote cured any defects in the form of the submission. This defect was more than form; it went to the very heart of what section 101.161(1) seeks to preclude. Moreover, it is untenable to state that the defect was cured because a majority of the voters voted in the affirmative on a proposed amendment when the...