in the district court of appeal of the state of ......benjamin r. kelley, esquire gainesville,...
TRANSCRIPT
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDAFIRST DISTRICT
CITY OF NEWBERRY, FLORIDA,CITY OF ARCHER, FLORIDA, andCITY OF ALACHUA, FLORIDA,
Appellants,
vs. CASE NO. 1D21-0640L.T. No. 01-2020-CA-2855
ALACHUA COUNTY, FLORIDA, a political subdivision of the State ofFlorida, and the ALACHUA COUNTYCHARTER REVIEW COMMISSION,
Appellees. /
APPELLANTS’ INITIAL BRIEF
DAVID A. THERIAQUE, ESQUIRE MARIAN B. RUSH, ESQUIREFlorida Bar No. 833232 Florida Bar No. 373583S. BRENT SPAIN, B.C.S. ROBERT A. RUSH, P.A.Florida Bar No. 320810 11 S.E. Second AvenueBENJAMIN R. KELLEY, ESQUIRE Gainesville, Florida 32601Florida Bar No. 092463 Telephone: 352/373-7566THERIAQUE & SPAIN Facsimile: 352/376-7760433 N. Magnolia Drive [email protected], Florida 32308Telephone: 850/224-7332 CO-COUNSEL FOR APPELLANTFacsimile: 850/224-7662 CITY OF ALACHUA, [email protected]@[email protected]
Filing # 123283268 E-Filed 03/17/2021 04:15:54 PM
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S. SCOTT WALKER, ESQUIREFlorida Bar No. 394939ANDREA T. PARKER, ESQUIREFlorida Bar No. 118465RICHARD B. MALTBY, ESQUIREFlorida Bar No. 123602DAVID W. WAGNER, ESQUIREFlorida Bar No. 265217FOLDS, WALKER & MALTBY, LLC527 E. University AvenueGainesville, Florida 32601Telephone: 352/372-1282Facsimile: 352/[email protected]@[email protected]@fwmlawfirm.com
COUNSEL FOR APPELLANTSCITY OF NEWBERRY, FLORIDA,and CITY OF ARCHER, FLORIDA
TABLE OF CONTENTS
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
PREFACE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . . . . . . . . . . 3
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
I. THE CIRCUIT COURT COMMITTED REVERSIBLE ERROR INRELYING UPON THE FIFTH DISTRICT’S DECISION INSEMINOLE COUNTY V. CITY OF WINTER SPRINGS AS SUCHCASE IS FACTUALLY AND LEGALLY DISTINGUISHABLEFROM THE INSTANT CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
II. THE CIRCUIT COURT COMMITTED REVERSIBLE ERROR INUPHOLDING THE CHARTER AMENDMENT INCONTRAVENTION OF SECTION 101.161(1), FLORIDASTATUTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
A. Legal Standard For Ballot Titles & Summaries . . . . . . . . . . . 21
B. The Ballot Title & Summary Misrepresented The PrimaryPurpose Of The Charter Amendment . . . . . . . . . . . . . . . . . . 22
C. The Ballot Title & Summary Failed To Provide Voters WithFair Notice Of The Legal Ramifications Of The CharterAmendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
i
D. The Ballot Title & Summary Improperly Invoked EmotionalOr Political Rhetoric . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
E. The Ballot Summary Failed To Notify Voters Of The ScopeOf The “Growth Management Area”. . . . . . . . . . . . . . . . . . . . 33
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ii
TABLE OF AUTHORITIES
Cases
Advisory Op. to the Attorney Gen. re Fish & Wildlife Conservation Comm’n, 705 So. 2d 1351 (Fla. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Advisory Op. to Attorney Gen. re Prohibits Possession of Defined Assault Weapons, 296 So. 3d 376 (Fla. 2020). . . . . . . . . . . . . . . . . . . . 38
Advisory Op. to the Attorney Gen. re Referenda Required for Adoption & Amendment of Local Gov’t Comprehensive Land Use Plans, 902 So. 2d 763 (Fla. 2005) . . . . . . . . . . . . . . . . . . . . . . . . 23, 25, 26
Detzner v. League of Women Voters of Fla., 256 So. 3d 803 (Fla. 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 26, 27, 29, 33, 34, 36
Dep’t of State v. Fla. Greyhound Ass’n, Inc., 253 So. 3d 513 (Fla. 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Durham v. Palm Court, Inc., 558 So. 2d 59 (Fla. 4th DCA 1990) . . . . . . 19
Evans v. Bell, 651 So. 2d 162 (Fla. 1995) . . . . . . . . . . . . . . . . . . . . . . . . 30
Fla. Dep’t of State v. Fla. State Conference of NAACP Branches,43 So. 3d 662 (Fla. 2010) . . . . . . . . . . . . . . . . . . . . . . . . 23, 26, 27, 28, 29
Griggs v. Ryder, 625 So. 2d 950 (Fla. 1st DCA 1993) . . . . . . . . . . . . . . . 3
In re Advisory Op. to the Attorney Gen. – Save Our Everglades, 636 So. 2d 1336 (Fla. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 32
Miami Heat Ltd. P’Ship v. Leahy, 682 So. 2d 198 (Fla. 3d DCA 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
MVW Mgmt., LLC v. Regalia Beach Devs. LLC, 230 So. 3d 108 (Fla. 3d DCA 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
iii
Picture It Sold Photography, LLC v. Bunkelman, 287 So. 3d 699 (Fla. 4th DCA 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Roberts v. Doyle, 43 So. 3d 654 (Fla. 2010) . . . . . . . . . . . . . . . . . . . 34, 37
Seminole Cty. v. City of Winter Springs, 935 So. 2d 521 (Fla. 5th DCA 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Speedway SuperAmerica, LLC v. Tropic Enters., Inc., 966 So. 2d 1 (Fla. 2d DCA 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
State v. Hayes, 333 So. 2d 51 (Fla. 4th DCA 1974). . . . . . . . . . . . . . . . . 19
State ex rel. Helseth v. Du Bose, 128 So. 4 (Fla. 1930). . . . . . . . . . . . . . 18
Suggs v. Sw. Fla. Water Mgmt. Dist., 953 So. 2d 699 (Fla. 5th DCA 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Twyman v. Roell, 166 So. 215 (Fla. 1936) . . . . . . . . . . . . . . . . . . . . . . . . 16
Virginia Ins. Reciprocal v. Walker, 765 So. 2d 229 (Fla. 1st DCA 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Volusia Citizens’ Alliance v. Volusia Home Builders Ass’n, Inc., 887 So. 2d 430 (Fla. 5th DCA 2004) . . . . . . . . . . . . . . . . 31, 33, 34, 36, 37
Florida Statutes
§ 101.161(1), Fla. Stat. (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
§ 163.3171(1), Fla. Stat. (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
§ 171.062(2), Fla. Stat. (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
iv
Florida Rules of Appellate Procedure
Fla. R. App. P. 9.045 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Fla. R. App. P. 9.130 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi, 12
Fla. R. App. P. 9.210 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
v
PREFACE
Appellants City of Newberry, Florida, City of Archer, Florida, and City of
Alachua, Florida, will be collectively referred to herein as the “Appellants” or
the “Cities.” Appellant City of Newberry, Florida, City of Archer, Florida, and
City of Alachua, Florida, will be individually referred to herein as “Newberry,”
“Archer,” and “Alachua,” respectively.
Appellees Alachua County, Florida, and Alachua County Charter Review
Commission will be collectively referred to herein as the “Appellees.”
Appellees Alachua County, Florida, and the Alachua County Charter Review
Commission will be individually referred to herein as the “County” and the
“CRC,” respectively.
References to the Appendix filed in support of this Initial Brief in
accordance with Florida Rule of Appellate Procedure 9.130 will be denoted
in parentheses by “App.” followed by the appropriate bates stamp page
number, e.g., “(App. 5).”
vi
INTRODUCTION
This case arises from an amendment to the Alachua County Home Rule
Charter (“Charter Amendment”), which the CRC proposed for adoption. (App.
14-21). The Charter Amendment passed at the November 3, 2020 General
Election with 50.1% of the vote. (App. 781).
On October 15, 2020, Alachua filed its “Amended Complaint for
Declaratory Judgment and Injunctive Relief” against the County and the CRC
to challenge the proposed Charter Amendment, and on October 26, 2020,
Archer and Newberry filed their “Complaint for Declaratory Judgment and
Injunctive Relief” against the County and the CRC, raising the same
allegations (collectively, the “Appellants’ Complaints”). (App. 22-60, 62-109).
By court order, the cases were consolidated below. (App. 110-11). In Count
I of the Appellants’ Complaints, the Appellants sought an order: (a) declaring
the Charter Amendment invalid because the ballot title and summary were
misleading, inaccurate, and omitted material information in violation of Section
101.161(1), Florida Statutes; and (b) enjoining the County from implementing
the Charter Amendment. (App. 30-37, 71-79).
1
The Appellants and the Appellees both moved for summary judgment
on Count I of the Appellants’ Complaints. (App. 138-220, 743-44, 745-80).
On February 1, 2021, the Circuit Court entered its “Order Granting
Defendants’ Motions for Summary Judgment on Count I of the Amended
Complaint” (“Summary Judgment Order”), thereby upholding the validity of the
Charter Amendment and denying the Appellants’ request for injunctive relief.
(App. 5-13). In so doing, the Circuit Court relied heavily upon the Fifth District
Court of Appeal’s decision in Seminole County v. City of Winter Springs, 935
So. 2d 521 (Fla. 5th DCA 2006), claiming it was “the only appellate case
directly relevant and on point to the issues before this Court.” (App. 9).
The Appellants respectfully submit that this Court must reverse the
Summary Judgment Order and remand with directions to the Circuit Court to
enter final summary judgment in the Appellants’ favor and enjoin the County’s
implementation of the Charter Amendment because:
A. The Circuit Court committed reversible error in relying uponthe Fifth District’s decision in Seminole County v. City ofWinter Springs as such case is factually and legallydistinguishable from the instant case; and
B. The Circuit Court committed reversible error in upholdingthe Charter Amendment because the ballot title andsummary were misleading, inaccurate, and omitted materialinformation in violation of Section 101.161(1), FloridaStatutes.
2
STATEMENT OF THE CASE AND FACTS
The “facts” for purposes of this appeal are those alleged in the
Appellants’ Complaints. See Griggs v. Ryder, 625 So. 2d 950, 950 (Fla. 1st
DCA 1993) (“This court, in determining the correctness of a summary
judgment, must accept the facts as pleaded.”).
A. Alachua County Charter Review Commission
The Alachua County Charter requires the Alachua County Board of
County Commissioners (“BOCC”) to appoint a Charter Review Commission
(i.e., the CRC) every ten (10) years to review the Alachua County Charter and
propose amendments or revisions to be placed on the general election ballot.
(App. 141 at ¶ B). The Alachua County Charter authorizes the CRC to submit
proposed amendments or revisions to the BOCC for placement on the general
election ballot, if favorably voted upon by a majority of the CRC’s entire
membership. (App. 142 at ¶ C).
Pursuant to the Alachua County Charter, the CRC formed in September
2019 to propose potential amendments or revisions to the Alachua County
Charter. (Id. at ¶ D). On June 10, 2020, the CRC adopted CRC Resolution
2020-01, which approved a proposed amendment to the Alachua County
Charter – i.e., the Charter Amendment – and set forth the ballot title and
3
summary that would appear on the ballot for the 2020 General Election. (App.
14-21). By separate resolution, the BOCC approved the ballot title and
summary for the proposed Charter Amendment to be placed on the ballot for
the 2020 General Election. (App. 180-86).
B. The Charter Amendment
Prior to the Charter Amendment, the Alachua County Charter provided
that municipal ordinances shall prevail over County ordinances to the extent
of any conflict. (App. 143 at ¶ F). Additionally, the Alachua County Charter
provided that each municipality was responsible for land use planning within
its respective boundaries, and that the County was responsible for land use
planning in the unincorporated area. (Id. at ¶ G). The Charter Amendment
fundamentally altered this regulatory scheme.
The Charter Amendment sought to amend the Alachua County Charter
to create an exception to the above-stated provisions. (App. 17-19). In
particular, the Charter Amendment would establish a “Growth Management
Area,” in which the County’s comprehensive plan and the County’s land
development regulations would govern, regardless of whether lands lying
within the Growth Management Area were located within, or subsequently
4
annexed into, a municipality.1 (App. 18 at § 1.5.B(1)). The Charter
Amendment would establish the boundaries of such “Growth Management
Area” by incorporation of the “County Growth Management Area Map,” dated
June 12, 2020, on file with the County Clerk. (Id.; App. 21). The Charter
Amendment would provide the BOCC with the authority to remove lands from
the Growth Management Area with an affirmative vote of at least four (4)
county commissioners. (App. 18 at § 1.5.B(1)). The Charter Amendment
would also authorize the BOCC to enact ordinances to implement its terms,
and such ordinances would prevail over any conflicting municipal ordinances.
(Id. at § 1.5.B(3)).
Pursuant to CRC Resolution 2020-01, the text of the Charter
Amendment read as follows:
Sec. 1.4. - Relation to municipal ordinances.
Except as otherwise provided by this charter,Mmunicipal ordinances shall prevail over countyordinances to the extent of any conflict.Notwithstanding the foregoing, if the county and amunicipality enact ordinances establishing differentstandards for the purpose of protecting theenvironment by prohibiting or regulating air or water
1 The area in question was initially titled the “County Land UseRegulation Area,” but the CRC subsequently changed the name to the“Growth Management Area.” (App. 146 at ¶ O).
5
pollution, the ordinances imposing more stringentstandards shall prevail to the extent of the differenceand be fully enforceable within the boundaries of suchmunicipality; however, the ordinances imposing lessstringent standards shall not be deemed to conflictwith ordinances imposing more stringent standardsand shall also be fully enforceable within theboundaries of such municipality.
Sec. 1.5. - Land use planning.
A. Except as provided in Section 1.5(B), Eeachmunicipality shall be responsible for land useplanning within its respective boundaries andthe county shall be responsible for land useplanning in the unincorporated area. Notwithstanding the foregoing, the county andany municipality may enter into an interlocalagreement to provide for joint planning inportions of the unincorporated area not locatedwithin any area designated pursuant to generalor special law as a reserve for annexation byanother municipality or in portions of the areawithin such municipality.
B. County Growth Management Area
(1) There is hereby established a County GrowthManagement Area, initially consisting of allthose lands so designated on that certain maptitled “County Growth Management Area Map”dated June 12, 2020, which is on file in theofficial records of the clerk of the board ofcounty commissioners. The board of countycommissioners may, by ordinance approved byaffirmative vote of no less than fourcommissioners, remove lands from the CountyGrowth Management Area.
6
(2) After the effective date of this subsection, thecomprehensive plan and land developmentregulations of Alachua County shall exclusivelygovern the development of lands lying withinthe County Growth Management Area,regardless of whether some or all of the landslying within the County Growth ManagementArea are located or subsequently annexed intoa municipality.
(3) The board of county commissioners may enactordinances to implement this subsection. Thissubsection and any implementing countyordinances shall prevail over conflictingmunicipal ordinances.
(4) Pursuant to Section 4.2(D), the charteramendment effectuating this subsection isexpressly declared to be effective county-wide,and the proposing charter review commissionhas determined that such county-wideamendment fulfills an important countypurpose.
(App. 17-19). As reflected above, the Charter Amendment did not establish
any restrictions, regulations, or guidance with respect to the management of
growth in the “Growth Management Area.” (Id.).
C. Ballot Title & Summary
CRC Resolution 2020-01 contained the following ballot title and
summary language for the Charter Amendment, which was placed on the
ballot for the 2020 General Election:
7
COUNTY CHARTER AMENDMENTESTABLISHING COUNTY GROWTHMANAGEMENT AREA
Shall the Alachua County Charter be amended,effective countywide, to establish a CountyGrowth Management Area (“Area”), provide thatthe County’s comprehensive plan and landdevelopment regulations will exclusively governland development in the Area, whether inside oroutside municipal boundaries, authorizeimplementing ordinances, provide for removal oflands from the Area, and provide that the charterand implementing ordinances shall prevail overconflicting municipal ordinances?
____ Yes____ No
(App. 17) (emphasis in original).
D. The Circuit Court Proceedings
On October 15, 2020, Appellant Alachua filed its Amended Complaint
against the County and the CRC challenging the proposed Charter
Amendment. (App. 22-60). On October 26, 2020, Appellants Archer and
Newberry filed their Complaint against the County and the CRC, raising the
same allegations (collectively, the “Appellants’ Complaints”). (App. 63-109).
By court order, the cases were consolidated below. (App. 110-11).
8
In Count I of the Appellants’ Complaints, the Appellants sought an
order: (a) declaring the Charter Amendment invalid because the ballot title
and summary were misleading, inaccurate, and omitted material information
in violation of Section 101.161(1), Florida Statutes; and (b) enjoining the
County from implementing the Charter Amendment.2 (App. 30-37, 71-79).
The Appellants and the Appellees both subsequently moved for
summary judgment on Count I of the Appellants’ Complaints. (App. 138-220,
743-44, 745-80). On December 14, 2021, the Circuit Court held a hearing on
the parties’ cross motions for summary judgment on Count I of the Appellants’
Complaints. (App. 802-10). At the conclusion of the summary judgment
hearing, the Circuit Court took the matter under advisement and provided the
parties with the opportunity to submit proposed orders for the Circuit Court’s
consideration. (App. 811-48).
On February 1, 2021, the Circuit Court entered its Summary Judgment
Order, thereby upholding the validity of the Charter Amendment and denying
the Appellants’ request for injunctive relief. (App. 5-13). In so doing, the
2 While the consolidated case was pending below, the CharterAmendment passed by a vote of 64,471 to 64,233 at the 2020 GeneralElection held on November 3, 2020. (App. 818). The Charter Amendmentbecame effective on January 1, 2021. (Id.).
9
Circuit Court concluded that the Charter Amendment met all of the
requirements set forth in Section 101.161, Florida Statutes, and was not
misleading or otherwise legally defective. (Id.).
On March 2, 2021, the Appellants timely filed their Notice of Appeal
seeking appellate review of the Circuit Court’s Summary Judgment Order
before this Court.
SUMMARY OF ARGUMENT
The Circuit Court committed reversible error in upholding the Charter
Amendment and denying the Appellants’ request for injunctive relief. First, in
granting summary judgment in the Appellees’ favor and upholding the Charter
Amendment, the Circuit Court erroneously relied upon the Fifth District’s
decision in Seminole County v. City of Winter Springs, 935 So. 2d 521 (Fla.
5th DCA 2006). It is indisputable that the actual issues decided in Seminole
County were factually and legally distinct from the issues raised in this case.
Consequently, by treating Seminole County as authoritative and upholding the
Charter Amendment based thereon, the Circuit Court committed reversible
error.
10
Second, contrary to the Circuit Court’s ruling, the record establishes that
the ballot title and summary for the Charter Amendment were misleading,
inaccurate, and omitted material information in violation of Section 101.161(1),
Florida Statutes. In particular, the ballot title and summary: (1)
misrepresented the Charter Amendment’s primary purpose; (2) failed to
provide voters with fair notice of the legal effect and ramifications of the
Charter Amendment; (3) invoked emotional or political rhetoric; and (4) failed
to notify voters of the scope of the “Growth Management Area” and contained
incomplete and ambiguous language. Thus, in granting summary judgment
in the Appellees’ favor and upholding the Charter Amendment, the Circuit
Court committed reversible error.
Accordingly, this Court must reverse the Circuit Court’s Summary
Judgment Order and remand with directions to the Circuit Court to enter final
summary judgment in the Appellants’ favor and enjoin the County’s
implementation of the Charter Amendment.
11
STANDARD OF REVIEW
The standard of review for a trial court order denying injunctive relief is
a hybrid. See Picture It Sold Photography, LLC v. Bunkelman, 287 So. 3d
699, 702 (Fla. 4th DCA 2020). To the extent the trial court’s order is based
upon legal conclusions, such order is subject to de novo review. See Suggs
v. Sw. Fla. Water Mgmt. Dist., 953 So. 2d 699, 699 (Fla. 5th DCA 2007).
Here, the Summary Judgment Order hinges upon the Circuit Court’s
legal conclusion that the Charter Amendment complied with Section
101.161(1), Florida Statutes. (App. 5-13). The Circuit Court’s ruling in this
regard involved a pure issue of law. See Dep’t of State v. Fla. Greyhound
Ass’n, Inc., 253 So. 3d 513, 519 (Fla. 2018) (stating that the question of
whether a ballot initiative is defective is a “pure question of law”).
Consequently, this Court’s review is de novo.3
3 This Court has jurisdiction to review the Summary JudgmentOrder pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(B) (non-final order denying injunctive relief). See Miami Heat Ltd. P’Ship v. Leahy,682 So. 2d 198, 201 (Fla. 3d DCA 1996) (holding order having “practicaleffect of denying appellants’ request for injunctive relief” was an appealablenon-final order).
12
ARGUMENT
I. THE CIRCUIT COURT COMMITTED REVERSIBLE ERROR INRELYING UPON THE FIFTH DISTRICT’S DECISION INSEMINOLE COUNTY V. CITY OF WINTER SPRINGS AS SUCHCASE IS FACTUALLY AND LEGALLY DISTINGUISHABLEFROM THE INSTANT CASE
As an initial matter, in upholding the Charter Amendment, the Circuit
Court relied upon the Fifth District’s decision in Seminole County v. City of
Winter Springs, 935 So. 2d 521 (Fla. 5th DCA 2006). In so doing, the Circuit
Court tried to draw comparisons between the ballot measure at issue in
Seminole County and the ballot measure at issue in this case, and remarked
that Seminole County is “the only appellate case directly relevant and on point
to the issues before this Court.” (App. 9-10 at ¶¶ 18-19). As discussed
below, however, it is indisputable that the actual issues decided in Seminole
County were factually and legally distinct from the issues raised in this case.
Accordingly, the Circuit Court committed reversible error in relying upon
Seminole County to uphold the Charter Amendment.
On its face, the Fifth District’s opinion in Seminole County indicates only
one issue relating to Section 101.161(1), Florida Statutes – i.e., whether the
ballot summary was deficient because “the amendment had the unannounced
effect of taking away County citizens’ right to enact ordinances by
13
referendum,” as authorized by the county charter. See Seminole Cty., 935
So. 2d at 526. That was not the issue in this case.
Moreover, the complaint and final judgment in Seminole County –
copies of which were filed below – establish that the issues actually raised in
Seminole County were factually and legally distinct from those in this case.
(App. 860-1004). Critically, the plaintiff in Seminole County did not raise the
Appellants’ central argument in this case relating to the misrepresented
primary purpose of the Charter Amendment. Unlike in Seminole County, the
Appellants asserted below that the true primary purpose of the Charter
Amendment was to fundamentally alter the annexation system in the County
– not to create a “Growth Management Area,” as misleadingly presented to
the voters. (App. 154-57 at ¶¶ 10-13). That was not an issue in Seminole
County.
In Count II of the complaint in Seminole County, the plaintiff alleged the
following cause of action:
Count II Declaratory Judgment that the ballotlanguage set forth in the Ballot Ordinanceviolates Section 101.161(1), FloridaStatutes and Florida Law in that the ballotsummary question fails to provide itssubstance in clear and unambiguouslanguage.
14
(App. 882-97 at ¶¶ 83-103). In support of its assertion that the ballot measure
violated Section 101.161(1), Florida Statutes, the plaintiff in Seminole County
raised the following specific arguments:
A. The ballot measure was misleading because itdid not identify the location of the “Rural Area.” (App. 884-85 at ¶¶ 93-97).
B. The ballot measure “did not adequately explainthe county’s intent in creating a ‘RuralBoundary’ or ‘Rural Area.’” (App. 885 at ¶ 98).
C. The ballot summary was deficient because itfailed to disclose the effect the amendmentwould have on the county’s comprehensiveplan, the municipalities’ comprehensive plans,and the county charter. (Id.).
D. The name “Rural Area” was ambiguous, as“[t]he term ‘Rural Area’ could easily beinterpreted to mean anything” and rendered thepurpose of the amendment “illusory.” (App.885-86 at ¶¶ 99-101).
E. The ballot measure was “misleading anddeceptive because it violate[d] the singlesubject requirement of the Seminole CountyCharter.” (App. 886 at ¶ 102).
F. The ballot summary was deficient because itfailed to explain the meaning of the amendmentand certain terms used therein. (Id.).
15
In the final judgment in Seminole County, the circuit court ruled that the
ballot measure at issue was defective because it had the unannounced effect
of altering the citizen initiative provision in the county charter, and violated the
single-subject requirement of the Seminole County Charter. (App. 991-1004).
The circuit court did not address the other issues raised by the plaintiff with
respect to Section 101.161(1), Florida Statutes. (See id.).
Thus, the complaint and final judgment in Seminole County establish
that the plaintiff did not raise, and the circuit court did not consider, the legal
issue in this case which is that the true primary purpose of the Charter
Amendment was to fundamentally alter the annexation system in the County
– not to create a “Growth Management Area,” as was presented to the voters.
Consequently, the Circuit Court committed reversible error in finding Seminole
County to be authoritative and upholding the Charter Amendment based
thereon. See Twyman v. Roell, 166 So. 215, 217 (Fla. 1936) (“To be of value
as a precedent, the questions raised by the pleadings and adjudicated in the
case cited as a precedent must be [o]n point with those presented in the case
at bar.”).4
4 In finding Seminole County to be authoritative, the Circuit Courtexplained that the ballot summary in that case did not use the term“annexation.” (App. 9 at ¶ 18). It is immaterial that the ballot summary in
16
Furthermore, it is indisputable that the Appellants’ additional arguments
in this case were not at issue in Seminole County. Indeed, the Seminole
County case did not involve or in any way address the following arguments
that the Appellants asserted below in contesting the Charter Amendment:
A. The County failed to provide fair notice ofchanges to the existing annexation system;
B. The ballot measure was misleading as to theresult of the Charter Amendment because theCounty’s land use regulations already applied inthe entirety of the Growth Management Area;
C. The ballot measure was misleading becausethe Charter Amendment, in reality, didabsolutely nothing substantively with respect tothe “management” of “growth”;
D. The term “Growth Management” constitutedimproper emotional or political rhetoric;
Seminole County did not use the term “annexation,” however, since thisparticular issue was not raised in that case. Additionally, the ballot summaryat issue in Seminole County stated: “CHARTER AMENDMENTESTABLISHING RURAL AREA AND PREEMPTING MUNICIPALCOMPREHENSIVE LAND USE AUTHORITY WITHIN RURAL AREA.”Seminole Cty., 935 So. 2d at 525 (emphasis supplied). Thus, unlike the ballotsummary for the Charter Amendment, the ballot summary at issue inSeminole County provided a more accurate description of the primarypurpose and effect of the charter amendment.
17
E. The ballot measure did not provide fair notice ofthe fact that the Charter Amendmentincorporated a map establishing the boundariesof the Growth Management Area;
F. The ballot measure failed to provide the voterswith any indication of the vast andcomprehensive scope of the GrowthManagement “Area,” encompassing virtually allof the unincorporated land in the County; and
G. The ballot measure was misleading andambiguous with respect to the provision relatingto the removal of lands from the GrowthManagement Area.
(Compare App. 154-69 at ¶¶ 10-37 with App. 882-87 at ¶¶ 83-103).
Simply put, contrary to the Circuit Court’s finding, Seminole County is
not and cannot be authoritative on legal issues that were not even presented
and ruled upon in the Seminole County case. See MVW Mgmt., LLC v.
Regalia Beach Devs. LLC, 230 So. 3d 108, 114 (Fla. 3d DCA 2017) (“It has
long been the law of Florida that ‘[n]o decision is authority on any question not
raised and considered, although it may be involved in the facts of the case.’”
(quoting State ex rel. Helseth v. Du Bose, 128 So. 4, 6 (Fla. 1930)). Thus, by
treating Seminole County as authoritative on the Appellants’ challenge to the
Charter Amendment, the Circuit Court committed reversible error. See
Speedway SuperAmerica, LLC v. Tropic Enters., Inc., 966 So. 2d 1, 3 (Fla.
18
2d DCA 2007) (holding trial court erred by treating appellate decision as
binding on an issue that was not raised, argued, or analyzed, noting that such
decision could not be precedent on a particular issue because “[t]hat issue
was not presented to the court, and it was not decided by the court”).
Lastly, even if Seminole County had involved the same issues as in the
instant case – which it did not – such decision is not binding upon this Court.
See State v. Hayes, 333 So. 2d 51, 54 (Fla. 4th DCA 1974) (“[T]his court is
not bound by the decision of a sister district court.”). Rather, this Court is free
to disagree with or distinguish the Fifth District’s decision. See Virginia Ins.
Reciprocal v. Walker, 765 So. 2d 229, 233 (Fla. 1st DCA 2000) (stating that
a decision from another district court does not have “binding effect in this
court,” reiterating “appellate courts may disagree with each other on a point
of law”); Durham v. Palm Court, Inc., 558 So. 2d 59, 59 (Fla. 4th DCA 1990)
(“[W]e are not bound by the [First District’s] decision and, in fact, we disagree
with it as it might apply to the facts of the controversy now before us.”).
Moreover, as discussed in Section II infra and contrary to the Circuit
Court’s ruling, the ballot title and summary for the Charter Amendment were
misleading, inaccurate, and omitted material information in violation of Section
19
101.161(1), Florida Statutes. Accordingly, this Court must reverse the Circuit
Court’s Summary Judgment Order upholding the Charter Amendment.
II. THE CIRCUIT COURT COMMITTED REVERSIBLE ERROR INUPHOLDING THE CHARTER AMENDMENT INCONTRAVENTION OF SECTION 101.161(1), FLORIDASTATUTES
The Appellants assert that the Circuit Court committed reversible error
in upholding the Charter Amendment in contravention of Section 101.161(1),
Florida Statutes. As discussed separately below, the Charter Amendment
was defective pursuant to Section 101.161(1), Florida Statutes, because the
ballot title and summary: (1) misrepresented the Charter Amendment’s
primary purpose; (2) failed to provide voters with fair notice of the legal effect
and ramifications of the Charter Amendment; (3) invoked emotional or political
rhetoric; and (4) failed to notify voters of the scope of the “Growth
Management Area” and contained incomplete and ambiguous language
regarding the future removal of lands from the “Growth Management Area.”
Accordingly, on such grounds, this Court must reverse the Circuit Court’s
Summary Judgment Order upholding the Charter Amendment.
20
A. Legal Standard For Ballot Titles & Summaries
Section 101.161(1), Florida Statutes, states:
Whenever a constitutional amendment or otherpublic measure is submitted to the vote of the people,a ballot summary of such amendment or other publicmeasure shall be printed in clear and unambiguouslanguage on the ballot after the list of candidates,followed by the word “yes” and also by the word “no,”and shall be styled in such a manner that a “yes” votewill indicate approval of the proposal and a “no” votewill indicate rejection. The ballot summary of theamendment or other public measure and the ballottitle to appear on the ballot shall be embodied in theconstitutional revision commission proposal,constitutional convention proposal, taxation andbudget reform commission proposal, or enablingresolution or ordinance. The ballot summary of theamendment or other public measure shall be anexplanatory statement, not exceeding 75 words inlength, of the chief purpose of the measure. . . . The ballot title shall consist of a caption, notexceeding 15 words in length, by which the measureis commonly referred to or spoken of. . . .
(Emphasis supplied).
The purpose of Section 101.161(1), Florida Statutes, is to ensure that
a proposed amendment is accurately represented on the ballot. See Detzner
v. League of Women Voters of Fla., 256 So. 3d 803, 807 (Fla. 2018). As
such, the ballot must “be fair and advise the voter sufficiently” to allow that
voter to “intelligently cast” his or her ballot. See id. The ballot must ultimately
21
“give the voter fair notice of the decision he or she must make.” See id.
Moreover, a proposed amendment “must stand on its own merits and not be
disguised as something else,” and “[a] ballot title and summary cannot either
‘fly under false colors’ or ‘hide the ball’ as to the amendment’s true effect.”
See id. at 808.
In assessing whether a ballot title and summary comply with Section
101.161(1), Florida Statutes, “the reviewing court should ask two questions:
first, whether the ballot title and summary ‘fairly inform the voter of the chief
purpose of the amendment’ and second ‘whether the language of the title and
summary, as written, misleads the public.’” See id. In so doing, the ballot title
and summary are read together to determine whether the ballot measure
properly informs the voters. See id.
B. The Ballot Title & Summary Misrepresented The PrimaryPurpose Of The Charter Amendment
As a threshold matter, the Charter Amendment was deficient because
the ballot title and summary misrepresented the Charter Amendment’s
primary purpose. In particular, the ballot title and summary suggested that
the primary purpose of the Charter Amendment was to create a “Growth
Management Area,” thereby giving the voters the impression that the Charter
Amendment pertained to the substantive “management” of “growth.” In
22
actuality, however, the Charter Amendment’s primary purpose was to prevent
a municipality – like each of the Appellants – from applying its own land use
regulations to certain properties it annexes after January 1, 2021. On this
basis alone, the Court must reverse the Summary Judgment Order.
By law, a ballot title and summary must accurately state the primary
purpose and effect of an amendment. See Advisory Op. to the Attorney Gen.
re Referenda Required for Adoption & Amendment of Local Gov’t
Comprehensive Land Use Plans, 902 So. 2d 763, 771-72 (Fla. 2005) (finding
ballot measure defective because the first sentence of the ballot summary did
not accurately explain the chief purpose of the amendment) (“Advisory Op. re
Referenda for Comprehensive Plans”). In examining whether a ballot title and
summary accurately state the primary purpose and effect of the amendment,
the Court must look to objective criteria inherent in the amendment, such as
the amendment’s main effect. See Fla. Dep’t of State v. Fla. State
Conference of NAACP Branches, 43 So. 3d 662, 667 (Fla. 2010).
Here, the ballot title and summary repeatedly gave the false and
misleading impression that the primary purpose of the Charter Amendment
was to create a “Growth Management Area.” For instance, the ballot title
read: “COUNTY CHARTER AMENDMENT ESTABLISHING COUNTY
23
GROWTH MANAGEMENT AREA,” and the ballot summary likewise began:
“Shall the Alachua County Charter be amended, effective countywide, to
establish a County Growth Management Area (“Area”).” (App. 17). A review
of the Charter Amendment’s plain text, however, establishes that the primary
purpose of the Charter Amendment was actually to prevent a municipality
from applying its own land use regulations to certain properties it annexes
after January 1, 2021. (App. 17-19). Significantly, the ballot title and
summary do not make any mention of this true primary purpose and the fact
that, if approved, the Charter Amendment would strip a municipality of its legal
authority to apply its land use regulations to certain property annexed into its
jurisdiction.
Moreover, in suggesting that the primary purpose of the Charter
Amendment concerned the creation of a “Growth Management Area,” the
ballot title and summary gave voters the false and misleading impression that
the Charter Amendment pertained to the substantive “management” of
“growth.” It is indisputable, however, that the Charter Amendment did not
establish any restrictions, directives, or guidelines with respect to the
substantive management of growth in the so-called “Growth Management
Area.” (App. 18-19 at §§ 1.5.B(1)-(4)). Rather, the Charter Amendment
24
addressed who (i.e., the County) would have regulatory authority over the
defined area, not what was to be done with such authority. Indeed, a future
county commission would be free to encourage unmitigated growth in the
“Growth Management Area,” without running afoul of the Charter Amendment.
The instant case is analogous to Advisory Opinion re Referenda for
Comprehensive Plans, wherein the Florida Supreme Court invalidated a ballot
summary based upon language therein that read: “Public planning in local
government comprehensive land use planning benefits Florida’s natural
resources, scenic beauty and citizens.” See Advisory Op. re Referenda for
Comprehensive Plans, 902 So. 2d at 771-72. The Florida Supreme Court
held the sentence relating to “natural resources” and “scenic beauty” was
misleading because it did “nothing to explain the chief purpose of the
proposed amendment,” which was to require referenda on all local
government comprehensive land-use plan adoptions or amendments. See
id. The Florida Supreme Court further explained that the ballot summary was
misleading for the additional reason that “local comprehensive plans include
multiple components, many of which do not involve strictly environmental or
aesthetic considerations.” See id.
25
Like the ballot summary in Advisory Opinion re Referenda for
Comprehensive Plans, which focused the voter on “scenic beauty” and
“natural resources,” the ballot measure here repeatedly focused the voter on
“Growth Management,” even though the actual substance of the Charter
Amendment did not concern “Growth Management” in any substantive
respect. Moreover, the voters had no way of knowing that an amendment
purporting to pertain to “Growth Management” did not, in reality, set forth any
regulations related to the actual “management” of “growth.”
As previously noted, “[a] ballot title and summary cannot either ‘fly under
false colors’ or ‘hide the ball’ as to the amendment’s true effect.” See
Detzner, 256 So. 3d at 808; see also Fla. State Conference of NAACP
Branches, 43 So. 3d at 667 (noting that a proposed amendment must “stand
on its own merits and not be disguised as something else,” and that “a ballot
title and summary cannot ‘fly under false colors’ or ‘hide the ball’ with regard
to the true effect of an amendment”) (citations omitted). By failing to
accurately represent the primary purpose of the Charter Amendment, the
ballot title and summary were misleading and legally defective pursuant to
Section 101.161(1), Florida Statutes. Indeed, the ballot title and summary are
26
a classic example of “hiding the ball.” Accordingly, on this basis alone, the
Court must reverse the Circuit Court’s Summary Judgment Order.
C. The Ballot Title & Summary Failed To Provide Voters WithFair Notice Of The Legal Ramifications Of The CharterAmendment
Next, the Charter Amendment was deficient because the ballot title and
summary failed to provide voters with fair notice as to the true legal effect and
ramifications of the Charter Amendment. In this regard, the ballot title and
summary failed to apprise voters that the Charter Amendment would
fundamentally alter the existing municipal annexation system, and gave the
false and misleading impression that growth was not already being managed
on the properties within the “Growth Management Area.” On this additional
basis, the Court must reverse the Summary Judgment Order.
To be valid, a ballot summary must provide voters with fair notice as to
the legal effect and ramifications of an amendment. See Fla. State
Conference of NAACP Branches, 43 So. 3d at 667; see also Detzner, 256 So.
3d at 812 (“Rather than advise voters of this critical change . . . the ballot
summary fails to explain the true effect of the amendment.”). In Florida State
Conference of NAACP Branches, the Florida Supreme Court held a ballot
summary was defective because it did not inform voters that the amendment
27
would change the existing mandatory contiguity requirement for redistricting
standards set forth by the Florida Constitution into a discretionary contiguity
requirement. See Fla. State Conference of NAACP Branches, 43 So. 3d at
668-69. Because the ballot language did not inform the voter of the effect the
amendment would have on existing law – that it would “clearly alter the nature
of the contiguity requirement” – the Florida Supreme Court struck the
measure pursuant to Section 101.161(1), Florida Statutes. See id.
Much like the ballot summary in Florida State Conferences of NAACP
Branches, the ballot summary failed to inform voters that the Charter
Amendment would fundamentally alter existing law with respect to annexation
and a municipality’s right to apply its own comprehensive plan and land
development regulations to certain annexed properties. Prior to the Charter
Amendment, a municipality within the County had the right to apply its
comprehensive plan and land development regulations to property that it
annexed. (App. 18 at § 1.5).5
5 See also § 171.062(2), Fla. Stat. (2019) (providing that the “effect”of annexation is that county regulations will remain in place only “until themunicipality adopts a comprehensive plan amendment that includes theannexed area”); § 163.3171(1), Fla. Stat. (2019) (“A municipality shallexercise authority under this act for the total area under its jurisdiction.”).
28
The Charter Amendment, however, provides:
[T]he comprehensive plan and land developmentregulations of Alachua County shall exclusivelygovern the development of lands lying within theCounty Growth Management Area, regardless ofwhether some or all of the lands lying within theCounty Growth Management Area are located orsubsequently annexed into a municipality.
(App. 18 at § 1.5.B(2)) (emphasis supplied). Thus, with respect to future
annexations of any property within the Growth Management Area, a
municipality within the County no longer has the right to apply its own
comprehensive plan and land development regulations to the property.
It is indisputable that the ballot summary for the Charter Amendment did
not inform voters of this critical change to the current annexation system in
the County. Indeed, the ballot summary did not even mention the word
“annexation.” (App. 17). Consequently, consistent with the reasoning in
Florida State Conferences of NAACP Branches, the ballot summary was
defective because it did not provide fair notice to the voters of the true effect
and ramifications of the Charter Amendment. See Detzner, 256 So. 3d at
812; Fla. State Conferences of NAACP Branches, 43 So. 3d at 667.6
6 See also Advisory Op. to the Attorney Gen. re Fish & WildlifeConservation Comm’n, 705 So. 2d 1351, 1355 (Fla. 1998) (holding ballotsummary was deficient because it did “not sufficiently inform the public of . .
29
The ballot title and summary also failed to provide voters with fair notice
as to the true effect and ramifications of the Charter Amendment by
erroneously suggesting that growth was not already being managed within the
“Growth Management Area.” Indeed, the ballot title and summary suggested
that the Charter Amendment was needed to manage growth in the “Growth
Management Area,” and that without the Charter Amendment growth would
not be managed in such area. It is undisputed, however, that growth on
property within the “Growth Management Area” was already being managed
prior to the Charter Amendment by the County’s comprehensive plan and the
County’s land development regulations within the unincorporated areas.
Accordingly, the ballot title and summary were misleading as to the true
result of the Charter Amendment in violation of Section 101.161(1), Florida
Statutes. See In re Advisory Op. to the Attorney Gen. – Save Our
Everglades, 636 So. 2d 1336, 1341 (Fla. 1994) (“The title of the present
. [a] transfer of power” between governmental entities that would result fromthe amendment); Evans v. Bell, 651 So. 2d 162, 166 (Fla. 1995) (“The ballotmeasure did not inform the electorate that an elected career service boardexisted and that an affirmative vote on the proposed amendment wasintended to abolish the elected board and substitute in its place an appointiveboard. As the measure appeared on the ballot, voters were given no notice,fair or otherwise, of this most significant ramification, even though this was thechief, if not only, purpose of the amendment.”).
30
initiative – ‘SAVE OUR EVERGLADES’ – is misleading. It implies that the
Everglades is being lost, or in danger of being lost, to the citizens of our State,
and needs to be ‘saved’ via the proposed amendment. Yet, nothing in the
amendment hints at this peril.”).7
D. The Ballot Title & Summary Improperly Invoked Emotional OrPolitical Rhetoric
In addition to the above legal deficiencies, the repeated use of the term
“Growth Management Area” in the ballot title and summary amounted to
improper emotional or political rhetoric. On this additional basis, this Court
must reverse the Summary Judgment Order.
By law, a ballot summary is improper if it contains language that is not
descriptive of the contents of the amendment and instead amounts to
emotional or political rhetoric. See Volusia Citizens’ Alliance v. Volusia Home
Builders Ass’n, Inc., 887 So. 2d 430, 431-32 (Fla. 5th DCA 2004) (invalidating
7 The ballot title and summary for the Charter Amendment not onlyerroneously suggested that growth was not currently being managed withinthe “Growth Management Area” – which it was – but gave voters the falseimpression that passage of the Charter Amendment would result in theCounty’s comprehensive plan and the County’s land use regulations applyingto properties located “outside municipal boundaries.” (App. 17). It isundisputed, however, that the County’s comprehensive plan and the County’sland development regulations already applied in such areas by law – i.e., theunincorporated area of the County.
31
ballot summary that included a single sentence that was “not descriptive of
the contents of the amendment” and “amount[ed] to mere ‘political rhetoric,’
the inclusion of which violates section 101.161(1)”); see also In re Advisory
Op. to the Attorney Gen. – Save Our Everglades, 636 So. 2d at 1341 (striking
ballot summary containing misleading “emotional language” amounting to
impermissible political rhetoric).
Here, the ballot title and summary repeatedly used the term “Growth
Management Area.” This was emotionally charged language that did not
reflect the actual substance of the Charter Amendment. Moreover, such
language erroneously suggested that the Charter Amendment somehow
furthered conservation or responsible growth, when, in reality, the Charter
Amendment did not set forth a single guideline or restriction relating to the
substantive management of growth in the so-called “Growth Management
Area.” (App. 17, 18 at §§ 1.5.B(1)-(4)). Consequently, the ballot summary
was legally defective as a matter of law. See § 101.161(1), Fla. Stat. (2019).
Accordingly, on this additional basis, this Court must reverse the Summary
Judgment Order. See In re Advisory Op. to the Attorney Gen. - Save Our
Everglades, 636 So. 2d at 1341 (holding ballot title “SAVE OUR
EVERGLADES” was misleading because it implied “the Everglades is being
32
lost, or in danger of being lost, to the citizens of our State, and needs to be
‘saved’ via the proposed amendment,” yet “nothing in the amendment hints
at this peril”).
E. The Ballot Summary Failed To Notify Voters Of The Scope OfThe “Growth Management Area”
Lastly, the ballot summary for the Charter Amendment was deficient
because it failed to provide voters with fair notice of the scope of the “Growth
Management Area.” The ballot summary also contained incomplete and
ambiguous language regarding the future removal of lands from the “Growth
Management Area.” On these additional grounds, this Court must reverse the
Summary Judgment Order.
A ballot summary is defective if it fails to provide voters with fair notice
of the actual contents of the proposed amendment. See Volusia Citizens’
Alliance, 887 So. 2d at 431-32 (“As to the remainder of the summary,
although descriptive of parts of the amendment, it excludes material elements
of the amendment and, thus, does not give fair notice of the content of the
amendment.”). Additionally, as previously discussed, a ballot summary must
provide voters with fair notice of the “true meaning and ramifications” of the
amendment. See Detzner, 256 So. 3d at 807. Where the ballot title and
summary fail to accurately describe the scope of an amendment, the ballot
33
measure is defective as it has “failed in its purpose.” See Roberts v. Doyle,
43 So. 3d 654, 659 (Fla. 2010). A ballot summary is also defective if it
contains ambiguous or misleading language that is likely to confuse the
voters. See id. at 660.
In Volusia Citizens’ Alliance, the Fifth District invalidated a ballot
summary because it failed to inform the voters that the amendment set forth
how the boundaries of an urban growth area would actually be established.
Consequently, the ballot summary failed to provide fair notice of the contents
of the amendment. The Fifth District explained its reasoning as follows:
For example, the summary makes no mention of thefact that it is the function of the council, after publichearings, to draw the boundary and that itsimplementation in municipalities shall be donethrough local planning agreements. Voters shouldhave been informed in the ballot summary that theirdecision to ‘establish, implement and enforce’ anUrban Growth Boundary would not be self-executing,but instead would be subject to the political processesof local governments.
Volusia Citizens’ Alliance, 887 So. 2d at 431-32.
Similarly, in Detzner, the Florida Supreme Court invalidated a ballot
summary pertaining to charter schools because it failed to explain which
public schools or categories of schools would be impacted by the amendment.
See Detzner, 256 So. 3d at 810. The Florida Supreme Court explained that
34
voters would be unable to understand the “true meaning and ramifications” of
the amendment because of what the summary did not say. See id. (“[T]he
problem ‘lies not with what the summary says, but, rather, what it does not
say.’. . . Because voters will simply not be able to understand the true
meaning and ramifications of the revision, the ballot language is clearly and
conclusively defective.”) (emphasis supplied). On this basis, the Florida
Supreme Court concluded that “the voters cannot be said to have fair and
sufficient notice to intelligently cast his or her vote.” See id.
Turning to the instant case, the ballot summary failed to inform the
voters as to the comprehensive scope of the “Growth Management Area” to
be created by the Charter Amendment. Indeed, it is indisputable that the
ballot summary did not provide the voters with any information about the size
and scope of the Growth Management Area. (App. 17). It is also indisputable
that the ballot summary did not inform voters that the Charter Amendment,
if approved, would establish the specific boundaries of the “Growth
Management Area,” via the incorporation of a map on file with the County
Clerk. (Id.; App. 18 at § 1.5.B(1)). The ballot summary contains no mention
of such map. (App. 17). The subject map, however, was of critical
significance because of the comprehensive scope of the “Growth
35
Management Area,” which, as the undisclosed map reveals, encompasses
the vast majority of unincorporated land within the County.8 (App. 21).
Thus, like the defective ballot summary in Volusia Citizens’ Alliance,
which failed to inform voters how the boundaries of an urban growth area
would be established, and the defective ballot summary in Detzner, which did
not indicate which schools or categories of schools would be impacted by the
amendment, it is indisputable that the ballot summary in this case: (1) did not
inform voters that the Charter Amendment would actually establish the
boundaries for the Growth Management Area by the incorporation of a map
on file with the County Clerk; and (2) did not provide any indication as to
which properties would or would not be impacted by the proposed Charter
Amendment. As a result of these material omissions, the ballot summary
failed to provide voters with fair notice of the content of the Charter
Amendment. See Detzner, 256 So. 3d at 810; Volusia Citizens’ Alliance, 887
8 During deliberations on the Charter Amendment, counsel for theCRC proposed language to be added to the ballot summary to expresslyreference the subject map. (App. 147 at ¶ P). The CRC, however, rejectedthe proposed change. (Id.). As a result of the ballot summary’s failure todisclose the subject map, voters (whether reviewing sample ballots orcompleting mail-in ballots) were also deprived of notice that they could haveactually seen the Growth Management Area (and the vast scope thereof), anddetermined which properties would be impacted by the proposed CharterAmendment, including whether their own property fell within the Area.
36
So. 2d at 431-32; see also Roberts, 43 So. 3d at 659-61 (holding ballot title
and summary defective because they failed to adequately inform voters as to
which properties would qualify for the proposed homestead exemption).
Compounding the above legal deficiencies, the ballot summary also
contained incomplete and ambiguous language that likely confused voters
regarding the future removal of lands from the “Growth Management Area.”
The relevant text of the Charter Amendment provides for the future removal
of land from the “Growth Management Area” upon the county commission’s
passage of an ordinance with a super-majority vote. (App. 18 at § 1.5.B(1)).
The ballot summary, however, stated only that the Charter Amendment would
“provide for removal of lands from the Area.” (App. 17). This was not an
accurate or sufficient summary of the actual removal provision, as it did not
provide voters with adequate information to make an informed decision.
First, the language in the ballot summary did not adequately inform
voters that removal may be accomplished only by a super-majority vote of the
county commission. See Volusia Citizens’ Alliance, 887 So. 2d at 431-32
(invalidating ballot summary because it failed to mention that it would be the
function of the council, after public hearings, to draw boundary lines, and that
its implementation in municipalities would be done through local planning
37
agreements). Second, the ballot summary language was ambiguous and
confusing. Indeed, the statement that the Charter Amendment would “provide
for the removal of lands from the Area” suggested that the Charter
Amendment itself would actually remove land from the “Growth Management
Area” – which it did not. See Advisory Op. to Attorney Gen. re Prohibits
Possession of Defined Assault Weapons, 296 So. 3d 376, 381-82 (Fla. 2020)
(holding ballot summary to be misleading because it stated that the
amendment exempted certain assault weapons, when, in actuality, the
amendment exempted only the current owner’s possession of such weapon).
Accordingly, on these additional grounds, this Court must reverse the
Summary Judgment Order.
CONCLUSION
In sum, the Circuit Court committed reversible error in upholding the
Charter Amendment and denying the Appellants’ request for injunctive relief.
Rather, as discussed herein, the ballot title and summary for the Charter
Amendment were misleading, inaccurate, and omitted material information in
violation of Section 101.161(1), Florida Statutes. Accordingly, this Court must
reverse the Circuit Court’s Summary Judgment Order and remand with
directions to the Circuit Court to enter final summary judgment in the
38
Appellants’ favor and enjoin the County’s implementation of the Charter
Amendment.
RESPECTFULLY SUBMITTED on this 17th day of March 2021.
/s/ S. Scott Walker /s/ David A. Theriaque______________________________ ____________________________S. SCOTT WALKER, ESQUIRE DAVID A. THERIAQUE, ESQUIREFlorida Bar No. 0394939 Florida Bar No. 832332ANDREA TRUE PARKER, ESQUIRE S. BRENT SPAIN, B.C.S.Florida Bar No. 118465 Florida Bar No. 320810RICHARD B. MALTBY, ESQUIRE BENJAMIN R. KELLEY, ESQUIREFlorida Bar No. 123602 Florida Bar No. 092463DAVID W. WAGNER, ESQUIRE Theriaque & SpainFlorida Bar No. 265217 433 North Magnolia DriveFolds, Walker & Maltby, LLC Tallahassee, Florida 32308527 E. University Avenue Telephone: 850/224-7332Gainesville, Florida 32601 Facsimile: 850/224-7662Telephone: 352/372-1282 [email protected]: 352/375-9960 [email protected]@fwmlawfirm.com [email protected]@[email protected] MARIAN B. RUSH, [email protected] Florida Bar No. 373583
ROBERT A. RUSH, P.A.COUNSEL FOR APPELLANTS 11 S.E. Second AvenueCITY OF NEWBERRY, FLORIDA, Gainesville, Florida 32601& CITY OF ARCHER, FLORIDA Telephone: 352/373-7566
Facsimile: 352/[email protected]
CO-COUNSEL FOR APPELLANTSCITY OF ALACHUA, FLORIDA
39
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I electronically filed the foregoing with theClerk of the Court by using the ePortal system and served a copy thereof viaElectronic Mail to:
ROBERT C. SWAIN, ESQUIRECORBIN F. HANSON, ESQUIREAlachua County Attorney’s Office
12 SE 1st StreetGainesville, Florida [email protected]
[email protected]@alachuacounty.us
WADE C. VOSE, ESQUIREVose Law Firm, LLP
324 W. Morse BoulevardWinter Park, Florida 32789
on this 17th day of March 2021.
/s/ David A. Theriaque_________________________________DAVID A. THERIAQUE, ESQUIRE
40
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this Initial Brief complies with the fontrequirements of Florida Rule of Appellate Procedure 9.045(b) and the wordcount limit of Florida Rule of Appellate Procedure 9.210(a)(2)(B).
/s/ David A. Theriaque_________________________________DAVID A. THERIAQUE, ESQUIRE
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