CASE NO.: DIVISION: COMPLAINT FOR DECLARATORY, INJUNCTIVE AND OTHER RELIEF. Plaintiffs, JOSEPH ANDREWS, CONNIE BENHAM, Dr. JUAN P.

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1 JOSEPH ANDREWS, CONNIE BENHAM, Dr. JUAN P. GRAY, LYNNE PRICE and Rev. LEVY WILCOX, as individuals and qualified electors of Duval County, Florida, IN THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA CASE NO.: DIVISION: vs. Plaintiffs, The CITY OF JACKSONVILLE, a consolidated political subdivision of the State of Florida, and MIKE HOGAN as Duval County Supervisor of Elections Defendants. / COMPLAINT FOR DECLARATORY, INJUNCTIVE AND OTHER RELIEF Plaintiffs, JOSEPH ANDREWS, CONNIE BENHAM, Dr. JUAN P. GRAY, LYNNE PRICE and Rev. LEVY WILCOX, as individuals and qualified electors of Duval County, Florida, sue Defendants MIKE HOGAN as Duval County Supervisor of Elections and the CITY OF JACKSONVILLE, for declaratory, injunctive and other relief, and in support thereof, allege as follows: 1

2 Preliminary Allegations 1. Joseph Andrews, Connie Benham, Dr. Juan P. Gray, Lynne Price and Rev. Levy Wilcox are all sui juris individuals resident in and registered to vote in Duval County, Florida. 2. Mike Hogan is the serving Supervisor of Elections for Duval County, Florida (hereinafter SOE). 3. The City of Jacksonville is a political subdivision of the State of Florida which, pursuant to state law, is simultaneously geographically co-extensive with and performs the political functions of Duval County, Florida (hereinafter COJ. ) 4. In March 2016 the Florida Legislature passed Committee Substitute for House Bill No. 1297, and on or about March 25, 2016, Governor Rick Scott signed Chapter creating Fla. Stat (9) as of July 1, A copy of Florida General Laws Chapter is attached hereto as Exhibit On May 10, 2016, the COJ s legislative branch, the City Council, adopted Ordinance E as an emergency at the request of the Mayor of Jacksonville. The Mayor signed Ordinance E in May, A copy of Ordinance E is attached hereto as Exhibit By virtue of Ordinance E, a ballot summary and referendum 2

3 regarding whether or not a new future half-cent sales tax should be adopted was directed by Defendant COJ to Defendant SOE to be placed on the Duval County primary election ballot for the August 30, 2016 election. 7. Plaintiffs have retained the services of the undersigned attorney and are obligated, in the event Plaintiffs attorney fees are awarded from or otherwise are properly collectable from any Defendant, to pay same to their undersigned attorney. full. COUNT ONE ACTION FOR DECLARATORY JUDGMENT THAT COJ ORDINANCE E IS VOID AB INITIO 8. Paragraphs 1 through 7, inclusive are realleged as though set forth in 9. This is an action for a declaratory judgment that COJ Ordinance E was void ab initio. 10. Ordinance E, adopted by COJ in May, 2016, referenced a sales surtax authorized by Section (9) [page 1, in 12-13] and Section (9), Florida Statutes, authorizes the governing body of a county to impose a one-half cent discretionary pension liability surtax [page 2, lines 29-31]; the Ordinance refers again to F.S (a) at page 3, line 2; page 4, line 3; and page 4, lines 29 and 31. 3

4 11. Ordinance E cites Florida Statutes (9) as its sole authorizing statutory authority, as of May Florida Statutes (9) was not then yet law nor would it become law until July 1, There existed no lawful authority whatsoever in May 2016 by virtue of which COJ could adopt Ordinance E or any other ordinance to lawfully implement the requirement that the Supervisor of Elections for Duval County, Florida place a sales surtax referendum onto the August 30, 2016 ballot. 13. The actions of the COJ in adopting Ordinance E in May 2016 were therefore ultra vires and are therefore void ab initio, null and without effect. WHEREFORE the Plaintiffs demand: a) that the Court declare Ordinance E null and void due to its adoption prior to the effective date of the legislation authorizing a referendum on a discretionary sales surtax; b) that the Court direct the removal of all reference to the referendum regarding any sales tax from all ballots not yet mailed, provided for early voting, or to be used on August 30, 2016 c) that the Court, using, as necessary, its injunctive, all writs, and other judicial powers, declare that any votes either yes or no on any ballots which have 4

5 been or which are hereafter provided by the SOE to the electorate shall not be counted and the results of any marked ballots shall be disregarded; fees; and full. d) awarding Plaintiffs their costs as in equity actions, including attorney e) such further relief as the Court deems appropriate. COUNT TWO FAILURE OF REFERENDUM SUMMARY LANGUAGE TO CLEARLY AND UNAMBIGUOUSLY STATE THE PURPOSE OF THE BALLOT ISSUE 14. Paragraphs 1 through 7, inclusive are realleged as though set forth in 15. Pursuant to Florida Public Law , effective July 1, 2016, a referendum of the voters of Duval County, Florida is required to determine if a majority of that electorate wish to implement the provisions of Florida Statute (9) [effective July 1, 2016] permitting the governing body of Duval County to impose a one-half cent discretionary pension liability surtax at a future date following fulfillment of a number of preconditions. 16. If in fact Exhibit 2, Jacksonville City Ordinance E (passed May 10, 2016) was, despite the fact that the state law authorizing it was not then yet in effect, a lawful ordinance, then the ballot initiative therein described and 5

6 authorized for placement on the August 30, 2016 primary ballot, is subject to the Florida Statute (1) requirement that an explanatory statement of the chief purpose of the measure (a ballot summary ) of 75 words or less be printed in clear and unambiguous language on the ballot. 17. The ballot summary forwarded to the SOE for inclusion on the August 30, 2016 primary ballot reads as follows: PENSION LIABILITY 1/2 -CENT SALES TAX PLAN Permanently closing up to three of the City s underfunded defined benefit retirement plans, increasing the employee contribution for those plans to a minimum of 10%, and ending the Better Jacksonville ½-cent sales tax are all required to adopt a ½-cent sales tax solely dedicated to reducing the City s unfunded pension liability. Shall such pension liability sales tax, which ends upon elimination of the unfunded pension liability or in 30 years maximum, be adopted? YES NO 18. The ballot summary exceeds 75 words. 10% is at least two words: ten percent. 1/2-cent is, as written, actually three words; one half cent. The ballot summary is therefore 78 words long, in direct violation of Fla. Stat (1). 19. Even assuming, per arguendo, that the ballot summary is no more than 75 words long, it is neither clear nor unambiguous in stating the chief purpose of 6

7 the measure of the ballot. The first sentence, over 50 words long, does not even state the subject of the sentence. What is stating the preconditions for the adoption of a sales tax, and by whom? The City government, the unstated subject of the first sentence (and arguably also the second sentence), is never explicitly stated. The ballot summary cannot be said to be either clear or unambiguous when it fails to even identify who or what seeks to adopt the sales tax. 20. Clarity of purpose requires the summary to tell the voters who, what, when, where, and why. Absent a subject in the explanatory sentence of the summary, it fails the who element. 21. The ballot summary contains misstatements of fact which prevent it from complying with F.S (1). For example, the summary refers to increasing certain contributions to ten percent when a number of recently hired City employees are already contributing ten percent of their salaries toward their pensions. The summary also states the pension liability sales tax will end in 30 years maximum when it is, in fact, authorized by the State for potential collection until December 31, 2060 (over 44 years after the August 30, 2016 primary election). Thus the summary also fails to correctly explain the when as well as the who. 22. Several clauses of the first sentence of the summary are misleading to 7

8 the prospective voter, in violation of the linguistic requirements of F.S (1). For example, the summary refers to [p]ermanently closing retirement plans without explaining that the plans will only be closed to new participants (meaning existing employees and their survivors in those plans will continue to accrue and receive benefits from those [p]ermanently closed plans for many decades to come). It also does not explain that new retirement plans will be negotiated with unions for future new city hires potentially leading to the creation of new defined benefit plans. 23. Another example of a misleading clause in the summary is ending the Better Jacksonville ½-cent sales tax... being required to adopt a ½-cent sales tax. Again, the lack of a stated subject to the sentence creates ambiguity of meaning. The summary can be read as stating the end of the Better Jacksonville tax as requiring the adoption of another sales tax, following standard subject-verbpredicate sentence structure. Since that is not how the sentence, which omits the subject, is in fact structured, F.S (1) is violated by this language as well. Thus both the what and the why of the referendum are not clear, beyond the fact that a sales tax is involved. Even the where, Duval County, of the sales tax is not explicit. 24. Even the title of the ballot measure is deceptive. PENSION 8

9 LIABILITY 1/2 -CENT SALES TAX PLAN includes the word plan when the measure is for a discretionary local sales surtax, and nothing more. 25. Voters presented with this ballot summary on the August 30, 2016 ballot are readily able to conclude a multitude of different potential meanings, which leads to the conclusion the summary is neither clear nor unambiguous. 26. As an objective measure of the clarity of the ballot summary, it was subjected to the Flesch Reading Ease test and the Flesch-Kincaid Grade Level test in Microsoft Word. Both tests are standard for comparison of comprehension and ease of understanding written material. For example, Fla. Stat requires every insurance policy in Florida to be readable, which it defines as having a Flesch reading ease test score of 45 or higher. 27. The Flesch reading ease score for the ballot summary is 8.6. The Flesch reading ease score for the first sentence of the ballot summary is 0. The Flesch reading ease score for the second sentence of the ballot summary is The Flesch-Kincaid Grade Level computed for the entire ballot summary is 21.1, or the equivalent of more than five years of post-college graduate education. The Flesch-Kincaid Grade level computed for the first sentence of the ballot summary is 26.2, or the equivalent of more than ten years of post-college graduate education. 9

10 29. The ballot summary for County Referendum No. 1 on the August 30, 2016 primary election ballot is unreadable by the standards of Fla. Stat By comparison, the Gettysburg Address has a Flesch Reading Ease score of 63.4 at a Flesch-Kincaid Grade Level of 11.0, and Shakespeare s To be or not to be soliloquy by Hamlet has a Flesch Reading Ease score of 52.2 at a Flesch- Kincaid Grade Level of 16.7 (and was written by 1602). 31. Plaintiffs urge the Court to adopt an objective standard of readability for every ballot summary in accord with the standards of Fla. Stat , to wit, a Flesch reading ease test score of 45 or higher. WHEREFORE it is prayed a) that the Court declare the ballot summary to the pension liability surtax measure on the August 30, 2016 Duval County primary ballot to be in violation of the F.S (1) mandate that it 1) contain no more than 75 words and 2) is written in clear and unambiguous language explaining the chief purpose of the ballot measure; and b) that the Court direct the SOE to remove all reference to the referendum and the ballot summary from all ballots not yet mailed or otherwise distributed for any purpose, including but not limited to voting by mail, early voting, and election day voting on August 30, 2016, using, as necessary, its injunctive, all writs, and 10

11 other judicial powers; c) that any votes either yes or no on any ballots which have been or which are ultimately received by the SOE where the referendum appears shall not be tabulated and that any results be disregarded; d) awarding Plaintiffs their costs as in equity actions, including attorney fees; and e) that the Court grant such other and further relief as it shall deem just and appropriate, including and supplemental injunctive or alternative relief. Respectfully submitted, JOHN S. WINKLER, P.A. By: /s/ John S. Winkler JOHN S. WINKLER 2515 Oak Street Jacksonville, FL (904) Facsimile: (904) Primary: Secondary: Fla. Bar No Attorney for Plaintiffs 11