IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO.: E. PATRICK LARKINS, et al, ) Appellants/Petitioners, ) LOWER COURT CASE NO. vs. ) 4D03-2275 M. ROSS SHULMISTER, as Chairman of, ) 4 TH DCA and on behalf of the MAYOR-AT-LARGE INITIATIVE COMMITTEE, et al, ) Appellees/Respondents. ) APPELLANT S BRIEF Andrew Johnston, Esquire Law Offices of Johnston, Thomas & Billington Counsel for Appellants/Petitioners 2335 East Atlantic Blvd., #301 Pompano Beach, Florida 33062 FBN: 162906 and Law Offices of W. George Allen Counsel for Appellants/Petitioners 800 Southeast 3 rd Avenue, Penthouse Fort Lauderdale, Florida 33316 Telephone (954)463-6681 BY: W. George Allen, Esquire
FBN: 00l337 TABLE OF CONTENTS TABLE OF CONTENTS...i TABLE OF CITATIONS...ii STATEMENT OF THE CASE...1 PARTIES...1 ARGUMENT......2 SUMMARY OF THE ARGUMENT...2 I. THE SUPREME COURT SHOULD GRANT CERTIORARI...2 TO REVIEW THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL II. THE FOURTH DISTRICT COURT OF APPEAL S...3 DECISION REVERSING THE CIRCUIT COURT S DECISION THAT THE SINGLE SUBJECT PROVISION i
LOCATED IN THE CITY OF POMPANO S CHARTER DOES APPLY TO AMENDMENTS PROPOSED BY THE ELECTORATE THROUGH AN INITIATIVE PETITION, SHOULD BE REVERSED CONCLUSION......8 CERTIFICATE OF COMPLIANCE...9 CERTIFICATE OF SERVICE...9 TABLE OF CITATIONS Cases Charter Review Commission of Orange County v. Scott,...3 647 So.2d 835 (Fla. 1994). City of Coral Gables v. Gray, 154 Fla....3 881, 19 So.2d 318 (Fla. 1944). Haines City Community Development v. Heggs,...3
658 So.2d 523 (Fla. 1995). Florida Constitution, Article V, Section (3)(b)...3 Statutes S e c t i o n 1 6 6. 0 3 1 ( 1 ) ( 2 ), F l o r i d a Statutes...4 S e c t i o n 5 7-1 7 4, F l o r i d a Statutes...4 City Charter, Pompano Beach Florida S e c t i o n 22...6,7,8 S e c t i o n 261...6,8 Florida Rule of Appellate Procedure, Rule 9.030 (a) (2) (a)...2 ii STATEMENT OF THE CASE Page 1 of 10
This was an action by nine (9) African American citizens of Pompano Beach, Florida to enjoin the City of Pompano Beach from implementing an amendment to the City Charter of Pompano Beach proposed by an initiative committee, and for Declaratory Judgment against the City of Pompano Beach, alleging the initiative committee s amendment violated the single subject provision of Pompano Beach s Charter. The referendum for this Charter amendment posed just one question yet proposed changing two separate things. The voters were asked to change the manner in which the Mayor was elected (to an at-large election) and to reduce the number of commission seats elected by district voting from five (5) to (4). Clearly, two separate questions were being asked but the voter could only give one answer. Prior to a Final Hearing, M. ROSS SHULMISTER, chair of the Mayor-at-Large initiative committee, a registered political committee, intervened as a party Defendant. SHULMISTER was the author of the initiative amendment. The Circuit Court granted the Petitioners/Appellants an injunction on May 27, 2003, because the amendments violated the single subject rule and caused substantial and irreparable public injury. The intervening Defendant, M. ROSS SHULMISTER, chair of the Mayor-at-Large initiative committee, filed an appeal. The City of Pompano Beach, Florida did not appeal. The Fourth District Court of Appeal reversed the lower court, ruling that the single subject provision located in the City Charter does not apply to amendments Page 2 of 10
proposed by the electorate through an initiative petition. A Petition for Writ of Common Law Certiorari was timely filed by the Appellants. PARTIES Plaintiffs (appellants) are: E. Patrick Larkins, Samuel Jackson, Carolyn McDougal, Minnie I. Campfield, James L. Jones, Hazel K. Armbrister, Rosie Evans, Charles E. Hunt and Marguerite K. Luster, African American residents and electors of the City of Pompano Beach, Florida. Defendants (Appellees) are: CITY OF POMPANO BEACH ( CITY ), a municipal corporation, who is not a party in this appeal, and M. ROSS SHULMISTER, a resident of Pompano Beach and the chair of the MAYOR-AT-LARGE INITIATIVE COMMITTEE, a duly registered political committee. ARGUMENT SUMMARY OF ARGUMENT I. THE SUPREME COURT SHOULD GRANT CERTIORARI TO REVIEW THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL. Jurisdiction is founded upon Rule 9.030 (a) (2) (a), Florida rule of Appellate Procedure, and upon Article V, Section (3) (b), Florida Constitution. Further, Page 3 of 10
decisions of District Courts are reviewable by the Florida Supreme Court by Common Law Certiorari if the District Court s decision involves questions affecting the duties of constitutional officers or elected officials, and or conflicts with a decision in another District Court of Appeal on the same or similar questions of law. This decision affects the duties of the Broward County Supervisor of Election, who is in charge of elections for the City of Pompano Beach, Florida, and the Mayor and Commissioners of Pompano Beach. There is uncertainty as to whether the initiatives voted on by the citizens of Pompano Beach contained one issue or two issues, and whether the votes were valid or invalid. The decision of the Fourth District Court conflicts with the decision in Charter Review Commission of Orange County v. Scott, 647 So.2d 835 (Fla. 1994), City of Coral Gables v. Gray, 154 Fla. 881, 19 So.2d 318 (Fla. 1944) and is subject to review by Common Law Certiorari. Haines City Community Development v. Heggs, 658 So.2d 523 (Fla. 1995). ARGUMENT II. THE FOURTH DISTRICT COURT OF APPEAL S DECISION REVERSING THE CIRCUIT COURT S DECISION THAT THE SINGLE SUBJECT PROVISION LOCATED IN THE CITY OF POMPANO S CHARTER DOES APPLY TO AMENDMENTS PROPOSED BY THE ELECTORATE THROUGH AN INITIATIVE PETITION, SHOULD BE REVERSED. In reversing the decision of the trial court to permanently enjoin the City of Page 4 of 10
Pompano Beach (City), the 4 th DCA premised its decision on its interpretation of Section 166.031, Florida Statutes (1997). Section 166.031(1) allows the amendment of a municipal charter by petition initiative. Section 166.031(2) provides for the adoption of the proposed amendment by the electors voting in a referendum. While Section 166.031(1) would arguably allow for several proposed amendments to be initiated via a single petition initiative, Section 166.031(2) states as follows: Upon adoption of an amendment to the charter of a municipality by a majority of the electors voting in a referendum upon such amendment, the governing body of said municipality shall have the amendment incorporated into the Charter... It is critical to note this section s clear use of an amendment rather than amendments. This use of amendment, singular, is repeated in the same sentence with the phrase referendum upon such amendment. Again, rather than state referendum upon such amendment or amendments or even just referendum upon such amendments, the Legislature has unequivocally imposed a single-subject limitation (i.e. one charter amendment per referendum) upon any referendum held pursuant to Section 166.031. In Charter Review Commission of Orange County v. Scott 647 So.2d 835 (1994), this Court refused to apply the single subject rule to ballot questions containing Page 5 of 10
County Charter revisions proposed by the charter review commission. The Court analogized the situation to the Constitution Revision Commission and the amendment process for the Florida Constitution. Of the four (4) ways by which the Florida Constitution can be amended, only proposals originating through petition initiatives are subject to the single-subject rule. No single-subject requirement is imposed upon proposals originating from the Constitution Revision Commission as that process embodies adequate safeguards against logrolling and deception. In Charter Review Commission of Orange County v. Scott, the Court stated that the County s Charter Review Commission provided the same type of procedural safeguards against logrolling and diminished the possibility of deceiving the public. Accordingly, the Court refused to impose a single subject rule upon that process. Charter Review Commission of Orange County v. Scott begs the question, is a referendum on a municipal charter amendment which has been proposed through an initiative petition subject to the single subject rule? The answer is an emphatic yes, especially when considering this Court s reasoning in Charter Review Commission of Orange County v. Scott. The Court suggests that in a situation where a proposed amendment originates via petition initiative, there exists the risk of logrolling and deception of the public. Page 6 of 10
In the instant case, the City of Pompano Beach s Charter Review Advisory Board considered the very proposal at issue here. That Board, which arguably would provide the protection described by the Supreme Court in Charter Review Commission of Orange County v. Scott, declined to recommend the approval of this legislation and suggested changes to it. In the instant case, the public requires the protection afforded it by the single subject rule. The proposed measure poses two (2) questions yet seeks one (1) response. The charter amendment creates the office of a mayor elected at large by all electors of the City. However, this at large office is created by reducing the number of single member commission districts from five (5) to four (4). Nowhere in the ballot summary for this referendum is the voter advised that by saying yes to the idea of an at-large mayor the voter is also saying yes to reducing the number of single member commission districts. Section 22, Charter of City of Pompano Beach, states, every proposed ordinance or resolution shall be introduced in written or printed form and shall not contain more than one subject. Thus, the City has its own self-imposed singlesubject limitation for ordinances and resolutions. Section 261, Charter of City of Pompano Beach, allows the City Commission to amend the City Charter by a resolution which is subsequently ratified by a majority of the City s electors. Page 7 of 10
Therefore, if the City Commission desires to amend the Charter, they must first pass a single-subject resolution (pursuant to Section 22) and then place the proposed amendment before the electorate via referendum. This referendum would, by design, ask the voter a single question due to the procedural safeguards inherent in the City Charter. If the citizen initiative petition is the legislative vehicle most susceptible to the risks of logrolling and public deception as discussed in Charter Review Commission of Orange County v. Scott, than why should it not be required to conform to the single-subject limitation enunciated in Section 22 of the Charter of Pompano Beach? The 4 th DCA stated it would not extend the plain and obvious language ( ordinances and resolutions ) of Section 22 to include petitions beyond their reasonable and obvious implications. To extend the construction of Section 22 of the City s Charter to include petitions would not expand the definition beyond its reasonable and obvious implications. Clearly the Charter seeks to limit legislative initiatives, be they Commission or citizen initiated, to a single-subject. This is especially critical when the ultimate decision rests with the electorate. How can the electorate articulate its will when it is asked two separate questions yet can only give one answer? This is the situation Section 22 of the City Charter avoids by imposing a single subject limit. Page 8 of 10
Any Charter amendment initiated by the City Commission would have to conform to the single subject limit set forth in Section 22 of the Charter as the Commission would have to pass a resolution endorsing the change and another to place it on the ballot. Thus, the electorate is safeguarded from logrolling and deception. Therefore, to extend the construction of Section 22 to include petition would be wholly reasonable as the obvious intent of Section 22 (when read in conjunction with Section 261) as to limit any legislative initiatives to a single subject. CONCLUSION This court should issue a Writ of Common Law Certiorari to review the decision of the Fourth District Court of Appeal, reverse the court, and uphold the injunction issued by the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida. Respectfully Submitted, Andrew Johnston Law Offices of Johnston, Thomas & Billington Counsel for Appellants/Petitioners 2335 East Atlantic Blvd., #301 Pompano Beach, Florida 33062 FBN: 162906 and Page 9 of 10
Law Offices of W. George Allen Counsel for Appellants/Petitioners 800 Southeast 3 rd Avenue, Penthouse Fort Lauderdale, Florida 33316 Telephone (954)463-6681 Facsimile (954)463-6685 BY: W. George Allen, Esquire FBN: 00l337 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the foregoing Reply Brief complies with Rule 9.210(a)(2). Attorney CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing Appellant s Brief was served by U.S. Mail on January 2, 2004 to: M. Ross Shulmister, Esquire, 590 Southeast 12 th Street, Pompano Beach, Florida 33060, Mark E. Berman, Office of City Attorney, City of Pompano Beach, 100 West Atlantic Blvd., Pompano Beach, Florida 33060, and Andrew Johnston, Esquire, Johnston, Thomas & Billington 2335 East Atlantic Blvd., #301, Pompano Beach, Florida 33062. Attorney Page 10 of 10