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Mullen v. Bal Harbour Village

Florida Court of Appeals, Third District

March 21, 2018

Lynne Bloch Mullen, et al., Appellants,
Bal Harbour Village, et al., Appellees.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County Lower Tribunal No. 17-3330, Rosa I. Rodriguez, Judge.

          KYMP LLP, and Juan-Carlos "J.C." Planas, for appellants.

          Weiss Serota Helfman Cole & Bierman, P.L., and Edward G. Guedes, Matthew H. Mandel and John J. Quick, for appellees.

          Before LOGUE, SCALES and LUCK, JJ.

          SCALES, J.

         Lynne Bloch Mullen, Beth Berkowitz and Good Government for Bal Harbour ("Plaintiffs") appeal the trial court's non-final order denying injunctive relief against Bal Harbour Village and Dwight Danie, the Village Clerk. We affirm because the trial court did not reversibly err in denying the requested injunction.[1]

         I. Relevant Facts and Procedural Background

         A. Plaintiffs submit petitions to the Village

         As part of Plaintiffs' effort to secure passage of two amendments to the Village Charter, pursuant to section 166.031 of the Florida Statutes, [2] Plaintiffs gathered and submitted to the Village Clerk signatures in support of two petitions to amend the Village Charter. One petition sought to amend section 81 of the Village Charter to require a vote of at least sixty percent of Village electors to approve the sale, lease or disposal of real property owned by the Village ("Petition 81").[3] The second petition sought to add a new section 82 to the Village Charter to require a vote of at least sixty percent of Village electors to approve certain, defined commercial development within the Village ("Petition 82").

         B. The Village provides erroneous instructions to the Supervisor

         The Village Clerk received Petition 81 and Petition 82, including the elector signatures in support of them, on November 16, 2016, and forwarded them on December 23, 2016, to the Miami-Dade County Supervisor of Elections ("Supervisor") for signature verification. In a subsequent letter to the Supervisor, the Village Clerk provided the Supervisor with the Village Charter's requirements for petition drives, adding a "requirement" for petition drives to amend the Village Charter - not contained in either section 166.031, the Village Charter or the Village Code - that all petitions must be accompanied by affidavits of the petition circulators ("circulator affidavit"). The Village Clerk premised such a "requirement" in his letter to the Supervisor on "long-standing custom and practice."

         The Village Clerk's advice regarding the circulator affidavit also appears to be influenced by his surface examination of Petition 81 and Petition 82. After receiving these petitions, which Plaintiffs had submitted as one package under one cover letter, the Village Clerk noticed several irregularities within them: (i) the cover letter identified a different number of signatures from the number on each of the two petitions; (ii) both Petition 81 and Petition 82 had more than one format, in that individual petition pages contained a single line for signature or multiple signature lines; (iii) there was a slight variation in language among the Petition 82 petition pages; and (iv) certain people signed petitions more than once.

         C. The Supervisor deems the petitions insufficient and Plaintiffs file suit

         Ultimately, the Supervisor deemed the petitions insufficient because the circulator affidavits were missing. The Supervisor did not thereafter proceed to verify the sufficiency of the signatures or further process the petitions for inclusion on an election ballot. After learning that their petitions were deemed insufficient, Plaintiffs, on February 13, 2017, filed a two-count complaint against the Village and the Village Clerk (collectively, "Defendants") alleging entitlement to both declaratory and mandamus relief. Plaintiffs' complaint contained a single "WHEREFORE" clause seeking, inter alia, a declaration that their petitions "met the requirements of the Florida Statutes regarding petitions for Charter Amendments within municipalities" and an order requiring the Village to submit the petitions to the Supervisor for verification without any "interference" by the Village. Importantly, Paragraph 10 of Plaintiffs' complaint alleged that:

As of the general election on November 8, 2016, there were 1, 732 registered voters in Bal Harbour Village. Accordingly, the requisite number of petitions that needed to be verified in order to place a referendum in the next election was 174.

         D. Defendants move to dismiss Plaintiffs' complaint asserting illegality of Petition 82

         Defendants moved to dismiss Plaintiffs' complaint. In their motion to dismiss, however, Defendants did not mention, much less defend, the Village Clerk's "requirement" that a circulator affidavit must accompany petition signatures. Rather, Defendants argued in their dismissal motion that Plaintiffs are not entitled to mandamus relief because they have no clear legal right to the requested remedy; and that Plaintiffs are not entitled to declaratory relief because Plaintiffs' ultimate desire - to amend the Village Charter to require voter approval for development orders - already has been "declared" illegal by the Florida Legislature. Specifically, in their motion to dismiss, Defendants contended, for the first time, that Petition 82 purported to amend the Village charter illegally, [4] and that the Village could not be compelled to forward to the Supervisor signatures for verification in support of an illegal initiative. The trial court denied Defendants' motion to dismiss and ordered that Defendants answer Plaintiffs' complaint.

         E. Plaintiffs file Motion for relief

         Prior to Defendants answering Plaintiffs' complaint, Plaintiffs, presumably to obtain expeditious relief, filed a Motion for Declaratory Relief, Permanent Injunction and Mandamus With Incorporated Memorandum of Law ("Motion"). In this Motion, Plaintiffs essentially argued that, after receiving a sufficient number of petitions to amend a municipal charter under section 166.031, a municipality has a ministerial duty to forward the collected signatures to the Supervisor for verification, unless a municipal charter or code provision affirmatively requires otherwise. Plaintiffs argued that, because nothing in section 166.031, the Village Charter or Village Code required a circulator affidavit as a condition for amending the Village Charter, Plaintiffs were entitled to a writ of mandamus compelling Defendants to forward the signatures to the Supervisor for verification.

         To the extent that the Village's duty to forward the petition signatures to the Supervisor is not purely ministerial, Plaintiffs' Motion alternately sought declaratory and injunctive relief. Specifically, as an alternative to mandamus relief, Plaintiffs sought both (i) a declaration from the trial court that no provision of the Village's code or charter required the circulator affidavit, and (ii) an ensuing injunction requiring the Village to forward the signatures for both petitions to the Supervisor for validation. Plaintiffs' Motion did not mention, much less argue against, the alleged illegality of Petition 82 earlier raised in Defendants' motion to dismiss.

         F. Defendants file their answer, affirmative defenses and response to Motion

         Four days after the filing of Plaintiffs' Motion, Defendants filed their answer and affirmative defenses to Plaintiffs' complaint. In their answer Defendants admitted the first sentence of the complaint's Paragraph 10 (that as of the November 8, 2016 general election, there were 1, 732 registered voters in the Village), while denying the other material allegations of Plaintiffs' complaint. As an affirmative defense, ...

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