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Andrews v. The City of Jacksonville

Florida Court of Appeals, First District

June 18, 2018

Joseph Andrews, Connie Benham, Dr. Juan P. Gray, Lynne Price, and Rev. Levy Wilcox, Appellants,
The City of Jacksonville, a consolidated political subdivision of the State of Florida, and Mike Hogan, as Duval County Supervisor of Elections, Appellees.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Duval County. Donald R. Moran, Jr., Judge.

          John S. Winkler, Jacksonville, for Appellants.

          Jason R. Gabriel, General Counsel, Jason R. Teal, Deputy General Counsel, and Craig D. Feiser, Assistant General Counsel, Jacksonville; Lauren V. Purdy and Simone Marstiller of Gunster, Yoakley & Stewart, P.A., Jacksonville, for Appellees.

          Osterhaus, J.

         Appellants challenge the action of the Jacksonville City Council in putting a one-half-cent sales surtax referendum before voters in the August 2016 election. Before voters passed the underfunded pension liability surtax, a group of citizens challenged the ballot's title and summary, among other things, in court. They made various arguments against the measure, all of which the trial court rejected. Now on appeal, Appellants ask us to declare the election null and void "for one, several, or all" of seven different reasons. We decline to do so and affirm.


         On May 17, 2016, the Jacksonville City Council adopted an ordinance setting a referendum on whether to adopt a sales surtax to address the City of Jacksonville's problem of underfunded pension liability. The Council took this action in response to a state law enacted in March 2016, which authorized counties to pass ordinances allowing for the levy of a one-half-cent pension liability sales surtax. See ch. 2016-146, § 2, Laws of Fla.[1] The Governor approved the law on March 25, 2016, and it took effect on July 1, 2016. See §§ 212.055(9), 112.64(6), Fla. Stat. (2016). The Jacksonville City Council set the referendum for August 30, 2016. In late July, five weeks before the election, Appellants filed a challenge to the ordinance. The case wasn't decided before the election. And in the election, voters approved the surtax. After the election, the parties filed cross motions for summary judgment and the trial court held a hearing. Ultimately, the trial court decided the case by granting summary judgment in favor of the City.


         The circuit court's order granting summary judgment involves a pure question of law that we review de novo. Hill v. Suwannee River Water Mgmt. Dist., 217 So.3d 1100, 1102 (Fla. 1st DCA 2017).


         Appellants make seven arguments for reversing the trial court's judgment. The strongest of these arguments is that the ballot title and summary misled voters to the point of requiring the election to be voided. Florida law requires that whenever a public measure is submitted to a vote of the people, a ballot summary must be printed in clear and unambiguous language on the ballot, which "shall be an explanatory statement, not exceeding 75 words in length, of the chief purpose of the measure." § 101.161(1), Fla. Stat. In construing § 101.161, the "[Florida Supreme Court] has explained 'that the ballot [must] be fair and advise the voter sufficiently to enable him intelligently to cast his ballot.'" Roberts v. Doyle, 43 So.3d 654, 659 (Fla. 2010) (quoting Askew v. Firestone, 421 So.2d 151, 155 (Fla. 1982)). When challenged, courts will review ballot titles and summaries by asking 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.'" Roberts, 43 So.3d at 659 (quoting Fla. Dep't of State v. Slough, 992 So.2d 142, 147 (Fla. 2008)). Ballot summaries need not explain every ramification of a proposal, but must make sure that the chief purpose is clear and unhidden. Fla. Hometown Democracy, Inc. v. Cobb, 953 So.2d 666, 673 (Fla. 1st DCA 2007). Courts will invalidate a ballot title and summary if the record shows that they are "clearly and conclusively defective." Askew, 421 So.2d at 154-55; City of Riviera Beach v. Riviera Beach Citizens Task Force, 87 So.3d 18, 22 (Fla. 4th DCA 2012). But they will be upheld if they state the chief purpose and are not "affirmatively misleading." Fla. Educ. Ass'n v. Fla. Dep't of State, 48 So.3d 694, 704 (Fla. 2010); see also City of Riviera Beach, 87 So.3d at 16 (instructing that "[a] ballot title and summary cannot either 'fly under false colors' or 'hide the ball' as to the amendment's true effect"). Fair notice to voters is evaluated presuming that "the voter [will] acquaint himself with the details of a proposed ordinance on a referendum . . . If he does not, it is not the function of the ballot question to provide him with that needed education." Miami Heat Ltd. P'ship v. Leahy, 682 So.2d 198, 203 (Fla. 3d DCA 1996) (quoting Metro. Dade Cty. v. Shiver, 365 So.2d 210, 213 (Fla. 3d DCA 1978)).

         Appellants' challenge focuses ostensibly on the summary, which they claim to be misleading on its face.[2] The ballot ...

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