IN THE SUPREME COURT OF FLORIDA APPELLANT S INITIAL BRIEF

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1 AX THE TAX, INC. IN THE SUPREME COURT OF FLORIDA APPEAL NO. SC vs. Appellant, THE CITY OF MAITLAND, FLORIDA, Appellee. / APPELLANT S INITIAL BRIEF Frederic B. O'Neal, Esq. Florida Bar No P.O. Box 842 Windermere, FL (407) FAX (407)

2 Preliminary Statement Appellant, AX THE TAX, INC., will be referred to herein as Appellant. Appellee, THE CITY OF MAITLAND, FLORIDA, will be referred to herein as the City. References to the transcript of the October 6, 2004 trial will be by abbreviation. For example, a reference to T., page 24, line10" will be a reference to page 24, line 10 of the trial transcript. - I -

3 Table of Contents Page Preliminary Statement... Table of Contents... I II Table of Citations... III Statement of Case and Facts... 1 Summary of Argument... 7 Argument Issue I. Whether the subject ballot violates Florida s single purpose rule... 8 Issue II. Whether the Spanish version of the subject ballot violated the requirements of Section ( Referenda; ballots ), Florida Statutes Conclusion Certificate of Service II -

4 Table of Citations Page Florida cases Antuono v. City of Tampa, 87 Fla. 82, 99 So. 324 (1924)... 3, 7, 9 Laboratory Corp. of America v. McKown, 829 So.2d 311 (Fla. 5 th DCA 2002)... 8 Winterfield v. Town of Palm Beach, 455 So.2d 359 (Fla. 1984)... 3, 7, 9 Florida Statutes Section , 3, 4, 7, 10, 11, 12 Florida Rules Rule 9.110, Fla.R.App.P.,... 1 Federal Statutes 42 U.S.C. Section 1973aa-1a... 1 Other Authorities 42 Fla.Jur.2d PUBLIC SECURITIES AND OBLIGATIONS Section McQuillen on Municipal Corporations, Section III -

5 STATEMENT OF CASE AND FACTS Nature of the Case This is an appeal pursuant to Rule 9.110, Fla.R.App.P., by Appellant, AX THE TAX, INC., a Florida corporation, from an order validating bonds. There is no dispute as to the relevant facts. The disputes below were as to law: i.e. whether the ballot 1 used in the July 13, 2004 election to approve the subject bonds violated the single purpose rule and whether the form of the Spanish language version of the ballot met the requirements of Section ( Referenda; ballots ), Florida Statutes, as required by Title 42 United States Code Section 1973aa-1a ( Bilingual election requirements ). Course of Proceedings Below On or about June 4, 2004 Appellant filed a complaint against the City for declaratory relief. 2 In that complaint Appellant raised the above-stated issues. On or about June 28, 2004 the City filed an answer. 3 On July 13, 2004 the election to validate the subject bonds occurred. A majority 1 Exhibit 9 in the Appendix filed here with, also Exhibit A attached hereto. 2 Exhibit 1 in the Appendix filed here with. 3 Exhibit 2 in the Appendix filed here with. 5

6 of the voters voted in favor of validation. On or about July 20, 2004 the City filed its Complaint for Validation. 4 In its complaint the City named Appellant as a party-defendant. On or about July 23, 2004 the City filed a motion to consolidate Appellant s declaratory relief action into its bond validation action. 5 On August 4, 2004 the trial court below entered an order granting the City s motion to consolidate, 6 as well as the statutorily required order to show cause. 7 On or about August 30, 2004 Appellant filed its answer in the bond validation case, 8 again raising the above-stated issues. The two, consolidated cases came on for trial on October 6, Appellant entered only one exhibit - the ballot used in the July 13, 2004 election to validate the subject bonds Exhibit 3 in the Appendix filed here with. 5 Exhibit 4 in the Appendix filed here with. 6 Exhibit 5 in the Appendix filed here with. 7 Exhibit 6 in the Appendix filed here with. 8 Exhibit 7 in the Appendix filed here with. 9 A copy of the transcript of the trial is in the Appendix filed here with as Exhibit A copy of the ballot is in the Appendix filed here with as Exhibit 9, and another copy of the ballot is attached to this brief as Exhibit A. 6

7 On October 18, 2004 the lower entered a Final Judgment for the City and against Appellant on all the above-stated issued. 11 In the Final Judgment the trial court specifically found the following: 13. The approval of Bonds for the Project, ballot summary and title and the Bond Referendum satisfies the Single Purpose test [n. See Antonio v. City of Tampa, 99 So.2d 324 (Fla. 1924) and its progeny] required by Florida law. The bond s in question were proposed and were issued for two or more purposes that were so related as to amount to a single purpose. There was a clear and compelling relation between all of the projects undertaken by the City, and there was a single plan of financing. Thus both new construction and the financing components of the project undertaken by the City could be approved in one referendum question. See Winterfield v. Town of Palm Beach, 455 So.2d 359 (Fla. 1984). 14. The Spanish version of the explanatory statement on the Ballot contained the substance of the measure was not governed by the 75 word limitation of section (1), Florida Statutes, and thus did not violate the statute. There was no evidence that the explanatory statement was translated into Spanish incorrectly or that it confused any Spanish-speaking voter. 15. The placement of the ballot of the words Yes-For and No- Against with their respective... Spanish versions between the English and Spanish versions of the explanatory statement did not violate Section (1), Florida Statutes. There was no evidence that this confused any Spanish-speaking voter. On November 17, 2004 Appellant timely filed its notice of appeal Exhibit 10 in the Appendix filed here with. 12 Exhibit 11 in the Appendix filed here with. 7

8 Statement of Facts The City s June 28, 2004 answer in response to the Appellant s complaint for declaratory relief admitted, among other things, the following three paragraphs of Appellant s complaint: 8. The City has scheduled a special, mail-in ballot election for July 13, 2004 to have the electors of the City vote on whether the City should issue up to $18,500, in limited general obligation bonds. The stated purpose of the bonds is to (1) finance construction of a new Police and Fire Building and to (2) finance construction of a new City Hall Complex, as well as to (3) refinance the West Side Fire Station and Public Works Yards. 9. A copy of the English and Spanish version of the July 13, 2004 mailin ballot for the special election is attached hereto as Exhibit A. 10. The form of the ballot is governed by Section ( Referenda; ballots ), Florida Statutes. Among other requirements, Section requires the following: - [T]he substance of the public measure... be followed by the word yes and also by the word no, and shall be styled in such a manner that a yes vote will indicate approval of the proposal and a no vote will indicate rejection. (Emphasis supplied). - [T]he substance of the... public measure shall be an explanatory statement, not exceeding 75 words in length,... (Emphasis supplied). In response to the City s validation complaint, Appellant admitted, among other things, the following paragraph: 8

9 5. The City Council sought voter approval for the financing of the construction of a new police and fire building personnel and a new city hall complex and the refinancing of the West Side Fire Station and Public Works Yard (collectively the Project ). At the October 6, 2004 trial the City called two witnesses. The City s first witness was David Tomek. 13 Mr. Tomek is the City s community development director. 14 Mr. Tomek testified as to what the funds from the subject bonds were to be used for: A. The funds are going to be used for the design and construction of the public safety consolidated police fire and some community space as well as a consolidated city hall, administrative building with some ancillary activities for some of the other public works and public safety folks as well as to refinance the west side public works compound, west side fire station, fuel depot. 15 Mr. Tomek also testified as to how the existing west side fire station and public works site relate to the proposed projects to be constructed with the subject bond money on the east side of the City. 16 The City s next witness was Brian Jones. 17 Mr. Jones is the City s assistant 13 T. pages 15 to T. page 15, line T. p. 20, lines 14 to T. p. 25, line 10 to page 28, line T. pages 36 to 44. 9

10 city manager. 18 Mr. Jones testified that refinancing the already constructed west side projects and financing the construction of the new east side projects was all part of a single plan of financing. 19 Appellant introduced one exhibit, 20 which was the form of the ballot admitted to by the City in its answer to Appellant s declaratory relief complaint. The form shows that the Spanish version of the explanatory statement contains 91 words and that the Spanish version of the for ( a favor ) and against ( en contra ) is placed above, rather than below, the Spanish version of the explanatory statement. The English version of the explanatory statement states: Shall the City of Maitland, Florida issue limited general obligation bonds not exceeding $18,500,000 bearing a legal rate of interest, payable from ad valorem tax not exceeding ½ of one mill levied on all taxable property within the City, maturing within thirty (30) years from issuance, to finance construction of a new Police and Fire Building, City Hall Complex, and to refinance the West Side Fire Station and Public Works Yard? 18 T. page 37, line T. page 42, lines 7 to T. pages 49 to

11 Summary of Argument The ballot approving the issuance of the subject bonds was illegal for three reasons. First, financing construction of a new Police and Fire Building, City Hall Complex, coupled with refinancing the West Side Fire Station and Public Works Yard violates the single purpose rule. See, e.g.,antuono v. City of Tampa, 87 Fla. 82, 99 So. 324 (1924)Winterfield v. Town of Palm Beach, 455 So.2d 359 (Fla. 1984). Second, placement of the Spanish version of for ( a favor ) and against ( en contra ) above the Spanish version of the explanatory statement, rather than below it, violates the requirements of Section ( Referenda; ballots ), Florida Statutes. Third, the Spanish version of the explanatory statement contained more than 75 words in violation of the requirements of Section ( Referenda; ballots ), Florida Statutes. 11

12 Argument Standard of Review The standard of review for questions of law is de novo. Laboratory Corp of America v. McKown, 829 So.2d 311, 313 (Fla. 5th DCA 2002). I. Whether the subject ballot violates Florida s single purpose rule. The referendum ballot violated Florida s single purpose rule since it contained more than one public works project to be funded by the proceeds of the issuance of the bonds. Moreover, the subject ballot not only proposed to finance the new construction of several different projects, it also proposed to refinance debt already incurred in constructing existing public works projects. Hence, the City was engaged in just the kind of log rolling Florida s single purpose rule was designed to prevent, or as otherwise stated: If there are two or more separate and distinct propositions to be voted on, each proposition should be stated separately and distinctly, so that a voter may declare his opinion as to each matter separately, since several propositions cannot be united in one submission to the voters so as to call for one assenting or dissenting vote upon all propositions; and elections are invalid where held under such restrictions as to prevent the voter from casting his individual and intelligent vote upon the object or objects sought to be obtained. The object of the rule preventing the submission of several and distinct propositions to the people united as one in such a manner as to compel the voter to reject or accept all is to prevent the joining of one local subject to others in such a way that each shall gather votes for all, and thus one measure, by its popularity or its apparent 12

13 necessity, carries other measures not so popular or necessary and which the people, if granted the opportunity of separate ballots might defeat. However, unless otherwise provided, it is proper to submit a number of propositions or questions at one time, provided the ordinance specifies each separate question or proposition as such, and provision is made by which the voters are given opportunity to vote upon each specific proposition or question independent of the other questions submitted at the same time. This may be done upon a single ballot, but the ballot must state each proposition separately, so that the voter may be able to express his will with reference to each question. 5 McQuillen on Municipal Corporations, Section 2198, as quoted with approval in Antuono v. City of Tampa, 87 Fla. 82, 99 So. 324 (1924); see also, e.g 42 Fla.Jur.2d PUBLIC SECURITIES AND OBLIGATIONS, Section 97 ( Single purpose rule ). A close factual example of where the single purpose rule was held to have been violated is the case of Winterfield v. Town of Palm Beach, 455 So.2d 359 (Fla. 1984). In Winterfield the Florida Supreme Court held that a bond referendum election wherein the voters were asked to approve bonds issued to pay for a new police facility, fire station, and sewer compressor station violated the single purpose rule. Here, the voters of Maitland were asked to vote to approve bonds for the financing of a new police and fire building personnel [sic] and a new city hall complex and the refinancing of the West Side Fire Station and Public Works Yard. (Emphasis supplied). Just the idea that voters are asked to approve in one vote both financing new construction along with refinancing existing construction debt is enough to violate the single purpose rule. As a matter of obvious prejudice to the voters of Maitland, prior to the July 13, 13

14 2004 election their property was not security for the repayment of the money used to construct the West Side projects. Subsequent to the July 13, 2004, it was. The voters of Maitland were not given the opportunity to separately vote on whether they wanted their property obligated for the repayment of that existing debt, as well as obligating their property for incurring new debt to construct new facilities. In short, if the single purpose rule has any remaining viability in Florida, the instant ballot violated that rule. Put another way, if this ballot didn t violate the single purpose rule, what ballot would? II. Whether the Spanish version of the subject ballot violated the requirements of Section ( Referenda; ballots ), Florida Statutes. A copy of the English and Spanish version of the July 13, 2004 mail-in ballot used in the subject referendum election is attached hereto as Exhibit A. The form of that ballot is governed by Section ( Referenda; ballots ), Florida Statutes. Among other requirements, Section requires the following: - [T]he substance of the public measure... be followed by the word yes and also by the word no, and shall be styled in such a manner that a yes vote will indicate approval of the proposal and a no vote will indicate rejection. (Emphasis supplied). - [T]he substance of the... public measure shall be an explanatory statement, not exceeding 75 words in length,... (Emphasis supplied). 14

15 The explanatory statement of the Spanish version of the Ballot violated the latter requirement of Section since it was longer than 75 words (note: it is 91 words in length). Additionally, the placement of the For and Against language on the Ballot violated the requirements of Section since the language did not follow the English and Spanish versions of the explanatory statement, rather it was placed between the two versions. 15

16 Conclusion Since the subject ballot violated both the single purpose rule and the requirements of Section , Florida Statutes, it was error for the trial court to have entered judgment validating the subject bonds. That judgment should be reversed. I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail delivery to the following persons on this 6th day of December, 2004: Kenneth Artin Bryant, Miller & Olive 135 West Central Blvd., Ste. 700 Orlando, FL Kenneth A. Guckenberger Michael S. Davis Bryant, Miller & Olive One Tampa City Center, Suite 2700 Tampa, FL Clifford B. Shepard, III Langston, Hess, Bolton, Znosko & Shepard, P.A. 111 S. Maitland Ave. Maitland, FL Frederic B. O'Neal, Esq. Florida Bar No P.O. Box 842 Windermere, FL

17 (407) FAX (407) Certificate of Compliance I HEREBY CERTIFY that the type in this Initial Brief is Times New Roman 14 point font and otherwise complies with the requirements of the Florida Rules of Appellate Procedure. 17