RECEIVED, 9/14/2016 10:36 AM, Mary Cay Blanks, Third District Court of Appeal

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA, THIRD DISTRICT
Case No. 3D16-2090
L.T. Case No. 16-20844 CA 01

MIAMI-DADE COUNTY BOARD OF

COUNTY COMMISSIONERS, et al.,
Appellants/Respondents,
v.
AN ACCOUNTABLE MIAMI-DADE, et al.,
Appellees/ Petitioners.

Reply Brief of Appellants/Respondents

ABIGAIL PRICE-WILLIAMS
Miami-Dade County Attorney
Stephen P. Clark Center
111 N.W. 1st Street, Suite 2810
Miami, Florida 33128
Telephone: 305-375-5151
Fax: 305-375-5634
By: Oren Rosenthal and Michael B. Valdes
Assistant County Attorneys
Florida Bar No. 86320 & 93129
Counsel for Appellants

TABLE OF CONTENTS
Page
Table of Contents .................................................................................................. i
Table of Citations ................................................................................................. ii
Argument .............................................................................................................. 1
I. Appellees Concede that the Ballot Title Violates the Express
Requirement of Florida Law ......................................................................... 1
II. The Ballot Question Affirmatively Misleads Voters and Must
Be Rejected .................................................................................................. 4
III. The Charter Does Not Compel Placement of this Ballot
Question on the November 2016 General Election Ballot .......................... 7
IV. The Trial Court Failed to Comply with the Requirements to
Issue a Writ of Mandamus .......................................................................... 11
A. Petitioners Self-Created Emergency Does Not Excuse the
Trial Courts Violation of Due Process ................................................ 11
B. Mandamus Was Improperly Granted on Disputed Law and
Concededly Wrong Facts ..................................................................... 14
Conclusion........................................................................................................... 15
Certificate of Service.......................................................................................... 16
Certificate of Type Size and Style .................................................................... 16

TABLE OF CITATIONS
Cases

Pages(s)

Abreau v. Cob,
670 So. 2d 1010 (Fla. 1996) ................................................................................. 2
Advisory Opinion to the Attorney General re Limits or Prevents
Barriers To Local Solar Electricity Supply, 177 So. 3d 235 (Fla. 2015) ............ 3
Advisory Opinion to the Attorney General re Water and Land
ConservationDedicates Funds to Acquire and Restore Florida
Conservation and Recreation Lands, 123 So. 3d 47, 52 (Fla. 2013) ................... 3
Advisory Opinion to the Attorney General re: Florida Growth
Management Initiative Giving Citizens the Right to Decide Local
Growth Management Plan Changes, 2 So. 3d 118, 122 (Fla. 2009) ................... 3
Armstrong v. Harris,
773 So. 2d 7, 13 (Fla. 2000) ................................................................................. 7
Askew v. Firestone,
421 So. 2d 151 (Fla. 1982) .................................................................................. 5
Bernard v. State,
743 So. 2d 606 (Fla. 1st DCA 1999) ................................................................... 9
Citizens for Proposition for Tax Relief v. Firestone,
386 So. 2d 561 (Fla. 1980) ................................................................................... 3
City of Clearwater v. State,
147 So. 459, 461 (Fla. 1933) ................................................................................ 14
City of Miami Beach v. Herman,
346 So. 2d 122, 123-24 (Fla. 3d DCA 1977) ....................................................... 11
City of W. Palm Beach v. Knuutila,
183 So. 2d 881, 88283 (Fla. 4th DCA 1966) ..................................................... 12

ii

TABLE OF CITATIONS
Cases

Pages(s)

Conner v. Mid-Florida Growers, Inc.,

541 So. 2d 1252 (Fla. 2d DCA 1989) ........................................................... 12, 13
Evans v. Firestone,
457 So. 2d 1351, 1355 (Fla. 1984) ................................................................ 4, 5, 6
Fla. Dept of State v. Slough,
992 So. 2d 142, 149 (Fla. 2008) ........................................................................... 7
Florida League of Cities v. Smith,
607 So. 2d 397, 400 (Fla. 1992) ........................................................................... 15
Frankenmuth Mut. Ins. Co. v. Magaha,
769 So. 2d 1012, 1018-19 (Fla. 2000).................................................................. 4
Kobrin v. Leahy,
528 So.2d 392 (Fla. 3d DCA 1988) ..................................................................... 3
Matheson v. Miami-Dade County,
187 So. 3d 221, 225 (Fla. 3d DCA 2015) ............................................................ 3
Miami Heat v. Leahy,
682 So. 2d 198, 203 (Fla. 3rd DCA 1996) .......................................................... 2
Miami-Dade Cnty. v. Village of Pinecrest,
994 So. 2d 456, 458 (Fla. 3d DCA 2008) ............................................................ 3
Monroe Cnty. v. Hemisphere Equity Realty, Inc.,
634 So. 2d 745, 747 (Fla. 3d DCA 1994) ............................................................ 4
Nash v. Richard,
166 So.2d 624, 625 (Fla. 3d DCA 1964) ............................................................. 8
Russello v. United States,
464 U.S. 16, 23 (1983) ......................................................................................... 9

iii

TABLE OF CITATIONS
Cases

Pages(s)

S. Realty & Utilities Corp. v. State ex rel. Goldner,

181 So. 2d 552, 55354 (Fla. 3d DCA 1966) ...................................................... 13
State ex rel. Glynn v. McNayr,
133 So. 2d 312, 316 (Fla. 1961) ........................................................................... 15
Statutory Authority

Pages(s)

100.371, Fla. Stat. ................................................................................................10

101.161, Fla. Stat. ........................................................................................ passim
A. Scalia & B. Garner, Reading Law:
The Interpretation of Legal Texts 25, p. 170 (2012) ......................................... 9
Art. VIII, 6(e), n. 3 11(1)(f), Fla. Const.............................................................. 4
Miami-Dade County, Fla., Home Rule Charter 3.06 ........................................... 2
Miami-Dade County, Fla., Home Rule Charter 8.01 ........................................ 5, 7

iv

ARGUMENT
This case demonstrates the tension between the peoples ability to legislate
directly through the process of initiative and the governments obligation to
discharge its duties in accordance with law. While Petitioners may employ a byany-means-necessary ethos that displays little to no regard for the laws that will
have to be ignored and the precedent that will have to be shattered for them to
achieve their desired result, the County Commission does not have that luxury.
This case does not just impact these petitioners or this election; it will affect the
drafting of every ballot question put in front of voters in this district going forward.
In short, if a ballot question as fundamentally misleading as this one is now
deemed sufficient to pass legal muster, then the requirements under 101.161, Fla.
Stat., will be rendered toothless, and the voters will be confronted with limitless
ballot language rife with rhetoric and misleading descriptions that will deny the
electorate any ability to express its true will. Because the trial courts Order put
this district on this precarious path by failing to follow the law and process on
mandamus, it must be reversed.
I. Petitioners Concede that the Ballot Title Violates the Express
Requirement of Florida Law
Petitioners concede, as they must, that the initiatory petition ballot title exceeds
the 15-word limit imposed by 101.161(1), Fla. Stat. See Answer Br. at 8-16. This
alone is sufficient for this Court to vacate the mandamus issued and to uphold the
decision of the County Commission enforcing Florida law. Nevertheless,
Petitioners request that this Court excuse this admitted failure of their own making

by erroneously arguing that: (1) the same Florida law that this Court has routinely
applied to both County and citizen-initiated ballot language does not apply to
Miami-Dade County; and (2) that the Clerk of the Circuit Courts (Clerk) review
somehow rewrites the clear and express requirement of the law and relieves the
County Commission of its independent obligation to permit only legally sufficient
petitions and petitions that are sufficient as to form to proceed. Id.
Curiously, in arguing that the 101.161(1) requirement that the ballot title shall
consist of a caption, not exceeding 15 words in length does not apply to initiatory
petitions under the Home Rule Charter, Petitioners cite to Miami Heat v. Leahy, a
case which actually applied the requirements of 101.161(1) to a citizens
initiated ballot question. 682 So. 2d 198, 203 (Fla. 3rd DCA 1996). As cases such
as Miami Heat make clear, the single subject rule or the recall provisions found in
Abreau v. Cob, 670 So. 2d 1010 (Fla. 1996) are preempted by the self-executing
initiatory petition process in either the Florida Constitution or the Home Rule
Charter because they relate to the substance of the proposal, the ballot integrity
requirements pertaining to, for example, the title length are not preempted. 1
Section 101.161 governs both the length of the ballot language and the
1

Appellees also improperly dismiss the incorporation of 101.161(1), Fla. Stat.

into a Charter requirement through 3.06 of the Charter by arguing that this
provision predated the decision in both Abreau and Miami Heat. Answer Br. 11.
But, this fact of timing is immaterial, as the state recall provisions at issue in
Abreau are explicitly preempted by the express terms of 8.02 of the Charter,
and the single subject ordinance at issue in Miami Heat was not a law of the
state as required by 3.06. See Miami Heat, 682 So. 2d at 203; Abreau, 670 So.
2d at 1010. As 101.161(1) is a state law that is not in conflict with any
provision of the Charter, its requirements shall apply to elections held under
this Charter. MIAMI-DADE COUNTY, FLA. HOME RULE CHARTER 3.06.
2

requirement that it not mislead the electors, which relates to the integrity of the
ballot and may be regulated. Id. (citing Citizens for Proposition for Tax Relief v.
Firestone, 386 So. 2d 561 (Fla. 1980) (We do, however, recognize that the
legislature, in its legislative capacity, and the secretary of state, in his executive
capacity, have the duty and obligation to ensure ballot integrity and a valid
election process. Ballot integrity is necessary to ensure the effectiveness of the
constitutionally provided initiative process.) This is why this Court has
consistently applied the word limitation of Section 101.161 to County and citizen
initiated ballot questions. 2 And the Supreme Court has consistently applied
101.161(1) to citizen-initiated Constitutional amendment ballot questions under
the Florida Constitution. 3
Alternatively, Petitioners incorrectly argue that the Clerk is somehow entitled to
relieve petitioners of the requirements of 101.161 through the doctrine of
2

See, e.g., Matheson v. Miami-Dade County, 187 So. 3d 221, 225 (Fla. 3d DCA
2015) (holding that county ballot questions must comply with 101.161(1));
Miami-Dade Cnty. v. Village of Pinecrest, 994 So. 2d 456, 458 (Fla. 3d DCA
2008) (applying 101.161(1) to County ballot question); Kobrin v. Leahy, 528
So.2d 392 (Fla. 3d DCA 1988).

See, e.g., Advisory Opinion to the Attorney General re Limits or Prevents

Barriers To Local Solar Electricity Supply, 177 So. 3d 235, 241 (Fla. 2015) (The
ballot title for the proposed amendment, which is limited by law to fifteen
words...); Advisory Opinion to the Attorney General re Water and Land
ConservationDedicates Funds to Acquire and Restore Florida Conservation
and Recreation Lands, 123 So. 3d 47, 52 (Fla. 2013) (In this case, the ballot
title and summary comply with the respective word limitations); Advisory
Opinion to the Attorney General re: Florida Growth Management Initiative
Giving Citizens the Right to Decide Local Growth Management Plan Changes, 2
So. 3d 118, 122 (Fla. 2009) (The ballot title and summary in this case comply
with the word-length limitations of section 101.161(1).)
3

equitable estoppel. Answer Br. 11-16. But equitable estoppel does not permit the
Petitioners to rewrite clear and express Florida law or permit Petitioners to violate
such provisions. Even if it did, the doctrine of equitable estoppel does not preclude
the County Commission, a separate government entity, from finding the petition
insufficient. This is because equitable estoppel is applied against the government
only in rare instances and under exceptional circumstances and only upon a
representation by the party estopped to the party claiming estoppel upon which
the party claiming estoppel had a right to rely. Monroe Cnty. v. Hemisphere
Equity Realty, Inc., 634 So. 2d 745, 747 (Fla. 3d DCA 1994). Here, the Clerk
expressly disavowed any such approval informing petitioners that [i]t is the
responsibility of the petitioner to comply with all applicable laws governing the
initiative petition process. Appx at 90. Moreover, the Clerk is a separate
government official explicitly excluded from County government and is thus not
entitled to bind the County Commission. See Art. VIII, 6(e), n. 3 11(1)(f), Fla.
Const.; Frankenmuth Mut. Ins. Co. v. Magaha, 769 So. 2d 1012, 1018-19 (Fla.
2000).
As the length of the ballot title of the initiatory petition has clearly violated
Florida law, a writ of mandamus requiring its placement on any ballot must be
vacated.
II. The Ballot Question Affirmatively Misleads Voters and Must be
Rejected
In Evans v. Firestone, the Florida Supreme Court rejected a misleading ballot
question of an otherwise constitutional petition because the government must

stand firm on the fundamental right of the voter to be given fair notice so that he
or she may make an informed decision on the merits of the provision. 457 So. 2d
1351, 1355 (Fla. 1984). And in Askew v. Firestone, the Florida Supreme Court
found that a ballot question that did not advise the electorate of the true meaning,
and ramifications, of an amendment was so misleading to the public concerning
material changes to an existing [ ] provision that [ ] remedial action must be taken
to strike the question from the ballot. 421 So. 2d 151 (Fla. 1982) (emphasis added).
This Court should do no less here.
In response, Petitioners attempt to obfuscate this issue by citing to a series of
inapposite cases in order to argue that the County cannot look at the petitions
misleading ballot language. Answer Br. at 16-21. In those cases, the governing
bodies would have never confronted the issue of a misleading ballot question
because the government, and not the initiatory petitioners, was responsible for
drafting the ballot language to place a citizen-proposed ordinance on the ballot.
Miami-Dade Countys Charter, however, requires the person proposing the
exercise of this power to submit the proposal, including proposed ballot
language and only allows the County Commission to review such language for
legal and form sufficiency not rewrite and insufficient proposal. See MIAMI-DADE
COUNTY, FLA., HOME RULE CHARTER 8.01(1); see also Init. Br. at I(D). The
County Commission, empowered by the direction of its citizens through the Home
Rule Charter, did just that and followed State law and the Supreme Court
precedent to find the ballot language irrevocably misleading.
The Answer Brief invites this Court to confuse Petitioners misleading ballot
5

questions with ballot questions that merely summarize the proposed ordinance.
Answer Br. 21-31. Here, as demonstrated in the Initial Brief, the proposed ballot
question affirmatively misleads the voters and prevents them from exercising their
rights at the ballot. The ballot question misleads when it tells voters that the
proposed ordinance will impose campaign restrictions on candidates for County
Offices when, as Petitioners concede, the ordinance only applies to three of the
four County offices, applies to two non-County offices, and actually releases one
County officer, the Property Appraiser, from all campaign finance restrictions. See
Init. Br. 33-35. The ballot question misleads when it tells voters that the ordinance
is prohibiting large county contractors from making political contributions when
in reality the ordinance applies to not only small County contractors, but also a vast
group of individual speech preventing, for example, the adult children of a
manager in the Countys Small Business Program from donating to a political
committee supporting the Florida governor.4 See Init. Br. 35-38. And the ballot
question affirmatively misleads when it interjects political rhetoric and emotional
appeals into the ballot box instead of a political campaign. 5 See Init. Br. at 38-40.
4

Plaintiffs all but concede that this restriction would be unconstitutional. See
Answer Br. 40-45 (providing no argument to justify the extension of the
political contribution ban to state and local non-County races)
Appellees contend that including the phrase addressing the appearance of
ethical impropriety in county government does not amount to political rhetoric
because preventing the appearance of corruption is a legitimate basis for
campaign finance laws. Answer Br. 30-31. But there is a critical difference
between the compelling interest that a measure serves and its legal effect. And
the Florida Supreme Court has held that only the latter has a right to be included
in the ballot summary. See Evans, 457 So. 2d at 1355. Put simply, it is for the
voters to decide whether the measures in this ordinance will address[ ] the
6

As explained in the Initial Brief, these defects are not merely summaries within
their 62-word ballot question, they are affirmatively misleading statements that
lead reasonable voters to cast their ballot for an ordinance other than the one
actually presented. See Fla. Dept of State v. Slough, 992 So. 2d 142, 149 (Fla.
2008) (Voters who support the elimination of [school property] taxes might
reconsider [their vote] if they were informed by the ballot title and summary that
the amendment also limits increases in annual assessments of non-school funds
(such as funds assessed for police protection and emergency services).)
Given the scope of the defects in the ballot question, the County had no choice
but to declare it legally insufficient and deficient as to form because, as noted in
Armstrong v. Harris, [t]o function effectivelyand to remain viablea
constitutional democracy must require no less. 773 So. 2d 7, 13 (Fla. 2000).
III. The Charter Does Not Compel Placement of this Ballot Question on
the November 2016 General Election Ballot
Under Section 8.01 of the Home Rule Charter, there are two instances where
the Board is called to act within a defined timeframe: (1) it must order a canvass no
later than 30 days after a signed petition [is] filed and (2) it may adopt a
proposed initiatory ordinance within 30 days after a sufficient petition is
presented. See MIAMI-DADE COUNTY, FLA., HOME RULE CHARTER 8.01(3)-(4).
These two periods are sequential (i.e., the Board has 30 days after a petition is filed
to order a canvass, and then, once sufficient canvass results are presented to the
Board, it has 30 days to adopt the ordinance or, at the expiration of that 30-day
appearance of ethical impropriety in County government, not for the ballot
language to tell them that it will.
7

period, the measure is placed on the next Countywide election). As a result, the
initiatory petition cannot appear on the November 2016 General Election ballot,
even if deemed legally sufficient, because the second Charter-mandated 30-day
period will not expire until after voting has begun and the November ballot is
unavailable. Init. Br. 21-22; 46. Petitioners argue that those time periods are
concurrent and, therefore, the Boards opportunity to adopt a sufficient petition
ended before it knew if the petition was sufficient. Answer Br. 34.
The Countys interpretation is the only interpretation that does justice to the
language in the Charter. First, the Countys interpretation is consistent with the
manner in which County government is organized. The Board is not an executive
that can take immediate action, it is a legislative body that acts validly only in
duly authorized and constituted meetings. Nash v. Richard, 166 So.2d 624, 625
(Fla. 3d DCA 1964). Moreover, the Board does not sit in regular session: it
convenes meetings on a semi-monthly basis. See Appx at 147. Thus, providing the
Board with 30 days to take each successive action provides reasonable certainty
that each action can be taken at a regularly-scheduled Board hearing. 6
Second, the Charter can only be reasonably interpreted so that a signed

The Countys experience with this initiatory petition is the exception that proves
the rule. Consider all of the administrative complications that arose simply
because Petitioners filed their initiatory petition during the one time when the
Board did not have a regularly scheduled meeting for more than 30 days. But, if
Petitioners interpretation were adopted, these complications would become the
new normal, as special meetings would have to be called anytime a petition was
filed, or the County would have to commit hundreds of thousands of dollars
towards expedited canvassing to account for not being able to immediately
convene to meet Petitioners impractical time frame.
8

petition that is filed has a different meaning than a sufficient petition that is
presented. While the Countys interpretation is consistent with that natural
reading, Petitioners interpretation would require that the 30 days from when the
signed petition [is] filed and the 30 days from when a sufficient petition is
presented are one and the same. In essence, they ask that this Court find two
different phrases to have a single meaninga direct contravention of canons of
statutory construction. See Russello v. United States, 464 U.S. 16, 23 (1983) (We
refrain from concluding here that the differing language in the two subsections has
the same meaning in each. We would not presume to ascribe this difference to a
simple mistake in draftsmanship.); A. Scalia & B. Garner, Reading Law: The
Interpretation of Legal Texts 25, p. 170 (2012) ([W]here the document has used
one term in one place, and a materially different term in another, the presumption
is that the different term denotes a different idea.).
Third, Petitioners rest their argument on a straw-man scenario whereby the
Supervisor of Elections could take any number of months or years to complete the
review of signatures. Answer Br. 38. Yet, the County has never claimed that this
would be permissible under its interpretation of the Charter. All along, the County
has maintained that the Supervisor of Elections is duty-bound to canvass the
signatures within a reasonable amount of time, which is customarily what the law
necessitates when compliance is required and no specified time is provided.7
7

If the Supervisor of Elections was unreasonably delayed in conducting the

canvass, then petitioners would potentially have a ripe mandamus claim. See
Bernard v. State, 743 So. 2d 606 (Fla. 1st DCA 1999) (finding mandamus
appropriate where trial courts delay was unreasonable). But, in this case, the
record clearly shows that the County expeditiously completed the canvass.
9

Furthermore, the Charters silence as to the time required for canvassing signatures
is reasonable because the time required to canvass a petition intended for the next
available Countywide election with signatures from 4 percent of registered voters
will take a different amount of time than a petition intended for a special election
with signatures from 8 percent of registered voters.
Fourth, Petitioners argue that the Countys interpretation prevents petitioners
from being guaranteed that their measure will be placed on their preferred election.
See Answer Br. 38. But the Charter does not entitle an initiatory petition to be
placed on any particular election; it provides that a petition will be placed on the
next available Countywide election after it has completed all stages of the process
outlined in Section 8.01. And, if Petitioners petition is deemed legally sufficient,
that is exactly what will happen under the Countys interpretation: it will be placed
on the August 2018 Primary Election ballot. The fact that Petitioners preferred to
see their ballot question on the November 2016 ballot and mistimed their petition
efforts is not grounds to disregard the requirements of the Charter and state law.8
Fifth, the time frames in the process for initiatory petitions, as interpreted by the
County, are wholly reasonable. By way of comparison, the State of Florida
requires all proposed constitutional amendments by initiatory petition to be
submitted and fully canvassed by February 1 to secure placement on the November
2016 General Election Ballot. See 100.371, Fla. Stat. Here, Petitioners had not

Appellees have continued to erroneously assert that they were told by the
Supervisor of Elections that Petitioners would make the November 2016 ballot if
they submitted their petitions by August 9, 2016. See Answer Br. 4. This is
neither true nor supported by the record. See Init. Br. 50.
10

even begun the process of submitting their petition and collecting signatures until
the end of April and did not submit their petitions for canvassing until a month
before the November 2016 ballot would be prepared, tested, and ready for print.
Furthermore, many municipalities and counties provide for their Boards to have a
defined period of time to adopt a proposed ordinance submitted by initiatory
petition following verification of sufficiency signatures and those timeframes must
be followed. City of Miami Beach v. Herman, 346 So. 2d 122, 123-24 (Fla. 3d
DCA 1977) (the City's Charter clearly provides a minimum 60-day period
between certification of the petitions and the date of the election. This requirement
was not met and the trial judge was correct in enjoining the City from placing the
measure on the ballot.)9
IV. The Trial Court Failed to Comply with the Requirements to Issue a
Writ of Mandamus
A. Petitioners Self-Created Emergency Does Not Excuse the Trial
Courts Violation of Due Process
Petitioners accepted the Countys Statement of the Case and Facts, objecting
only to legal arguments contained therein. See Answer Br. 1. Accordingly, the

Petitioners also argue that the 30-day period for adoption by the Board has
ended by virtue of the Board refusing to adopt the ordinance when the results
of the canvass were presented. Answer Br. 35. But the Charter does not require
the Board to take action to either adopt or refuse the proposed ordinance; it
simply gives the Board an option to adopt within 30 days, and, if no action is
taken during that time, then the proposal goes on to the next available
Countywide election. The Charter provides the Board with a full 30 days to
consider adoption of the proposed ordinance even if the Board stated its intent
by to reject the proposal on Day 1, because the Board is always entitled under
the Charter to reconsider its position at any time until Day 30.
11

most salient facts regarding the trial court judges erroneous granting of mandamus
remain undisputed: the trial judge never addressed the facial validity of the
Mandamus Petition by issuing the required alternative writ; and the trial judge
specifically informed the parties that the September 8 hearing would concern only
Petitioners Motion to Expedite, but he considered the merits of the petition at the
hearing anyway. See Init. Br. 10; Supp. Appx at 5. Petitioners attempt to sweep
away this failure to follow proper process by characterizing the circumstances as
an emergency. But, if there was an emergency, it was of Petitioners own
making because they chose to file their petitions too late to be completely
canvassed and approved in time for the November 2016 General Election ballot.
Petitioners reference to Conner v. Mid-Florida Growers, Inc., 541 So. 2d 1252
(Fla. 2d DCA 1989), to support their argument that the trial court was free to
disregard all process, see Answer Br. 47, is simply disingenuous. Conner explained
that a trial court is obligated to first determine the facial validity of a mandamus
petition, to issue an alternative writ, and to give the government agency proper
notice and an adequate opportunity to respond to the courts alternative writ. Id. at
1256-57. The exception that Conner recognized for alternative writs presenting
only questions of law concerned whether a respondent was entitled to file an
answer to factual allegations after an alternative writ has issued and a motion to
quash has been denied. Id. at 1256 n.7 (citing Knuutila); City of W. Palm Beach v.
Knuutila, 183 So. 2d 881, 88283 (Fla. 4th DCA 1966) (The City is also
aggrieved at the trial court's refusal to give them an opportunity to file their answer
or return to the alternative writ and be heard after the court denied its motion to
12

quash.). Petitioners essentially want a trial court to be able to issue a peremptory

writ ex parte and not allow the government to adequately contest, either the factual
or legal issues raised therein. That is not the law.
Certainly, none of the cases recognizing a limited exception to the procedure for
answering an alternative writ of mandamus countenance what happened here: the
trial court failed to perform its threshold duty to determine the facial sufficiency of
the petition and failed to issue the County an order to show cause; the trial court
notified the County that it was going to hear only an ancillary procedural motion;
and the trial court then proceeded, at that motion hearing, to consider the
mandamus petition on the merits.
Petitioners contention that defendants had ample opportunity and studiously
avoided ever raising the procedural issues, Answer Br. 47, is both wrong and
immaterial. The County never had ample opportunity to respond because no
alternative writ was ever issued. S. Realty & Utilities Corp. v. State ex rel.
Goldner, 181 So. 2d 552, 55354 (Fla. 3d DCA 1966) (The law requires that a
reasonable time be given to file a return to an alternative writ of mandamus.). And
it did not avoid raising an issue; there was no issue to raise until this appeal
because [t]here is no requirement that the respondent in a mandamus action
assume anything in advance of the trial court's preliminary determination that the
complaint is facially sufficient, which never occurred in this case. Conner, 541
So. 2d at 1256. Additionally, the trial courts failure to comply with the process for
mandamus is the type of [f]undamental error[ ] in a judgment, as a matter of law,
[that] can be raised and insisted upon at any time, even for the first time on
13

appeal. City of Clearwater v. State, 147 So. 459, 461 (Fla. 1933) (Such an
objection as that a peremptory writ is beyond the scope of the alternative writ is a
fundamental one going to the validity of the judgment.
B. Mandamus Was Improperly Granted on Disputed Law and
Concededly Wrong Facts
Petitioners correctly concede that the County Commission took no action at its
May 17, 2016 public hearing on the petition, and that the trial court erred in
asserting that it did. Answer Br. at 48. But Petitioners incorrectly assert that this
fact played no role in the trial courts decision. Id. Central to the trial courts
erroneous holding that the Board had a ministerial duty to place the question on the
ballot after the signatures were certified on September 6 was its conclusion that:
Because the initiative petition form was approved by the Clerk pursuant to section
8.01(1), and later approved by the Board of county commissioners on May 17,
2016, the named officials consequently had a ministerial duty to either adopt the
initiative petition or place it on November's ballot. Appx at 198 (emphasis
added). Indeed, the trial courts reliance on that erroneous fact suggests that the
court knew the Clerks review did not conclusively determine the sufficiency of
the petition as to form and that the Board had the independent authority and duty to
review the petition for sufficiency; but without incorrectly finding that the Board
had earlier exercised that discretionary authority, the trial court could not find that
the review had become ministerial on September 7.
Petitioners also attempt to distinguish a key disputed issue the legislative
history of the Home Rule Charter, see County Init. Br. 20-21 as not being

14

relevant because it is a question of law, not fact. But that distinction is irrelevant in
a mandamus proceeding, which requires clarity and certainty not only as to the
facts, but also as to the applicable law. See Florida League of Cities v. Smith, 607
So. 2d 397, 400 (Fla. 1992); State ex rel. Glynn v. McNayr, 133 So. 2d 312, 316
(Fla. 1961). If the briefs in this case demonstrate nothing else, they demonstrate
that there is dispute regarding the nature and scope of the County Commissions
sufficiency review after signatures are certified. And where there is such a dispute,
there cannot be a clear legal right or an indisputable legal duty.
For the same reason, Petitioners cannot wave away the deference due to the
Countys interpretation of its own authority by merely stating their interpretation is
clearly correct. Answer Br. 49-50. As shown above, this is plainly wrong.
Mandamus is an extraordinary writ the purpose of which is not to establish a
legal right. McNayr, 133 So. 2d at 316. The trial judge here ignored the narrow
confines of the established restrictions on mandamus, id. at 315, and instead
reached a question of first impression of the Miami-Dade County Home Rule
Charter. The trial courts order must be reversed.
CONCLUSION
Accordingly, the County respectfully requests that this Court vacate the trial
courts Order and allow the November 8, 2016 General Election to proceed
without this illegal ballot question.

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Dated September 14, 2016

Respectfully submitted,
ABIGAIL PRICE-WILLIAMS
MIAMI-DADE COUNTY ATTORNEY
By: /s/ Oren Rosenthal and Michael Valdes
Oren Rosenthal and Michael B. Valdes
Assistant County Attorneys
Florida Bar Nos. 86320 & 93129
Miami-Dade County Attorneys Office
111 N.W. 1st Street, Suite 2810
Miami, Florida 33128
Telephone: (305) 375-5151
Fax: (305) 375-5634
Email: orosent@miamidade.gov
mbv@miamidade.gov

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CERTIFICATE OF SERVICE
Undersigned counsel certifies that a true and correct copy of the foregoing
Reply Brief was served by e-mail on September 14, 2016 to:
Benedict P. Kuehne
Law Office of Benedict P. Kuehne, P.A.
100 S.E. 2nd Street, Suite 3550
Miami, FL 33131
E-mail: ben.kuehne@kuehnelaw.com; efiling@kuehnelaw.com
Joseph E. Sandler
Sandler, Reiff, Lamb, Rosenstein & Birkenstock PC
1025 Vermont Ave., N.W. Suite 300
Washington, D.C. 20005
E-mail: sandler@sandlerreiff.com
Joseph Geller
Greenspoon Marder, P.A.
200 E. Broward Blvd., Suite 1800
Fort Lauderdale, Florida 33301
E-mail: joseph.geller@gmlaw.com
/s/ Oren Rosenthal
Assistant County Attorney
Miami-Dade County Attorneys Office
CERTIFICATE OF COMPLIANCE
Undersigned counsel certifies that this brief complies with the font
requirements in Fla. R. App. P. 9.210.
/s/ Oren Rosenthal
Assistant County Attorney
Miami-Dade County Attorneys Office

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