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Case No. 1D20-2421
IN THE DISTRICT COURT OF APPEAL FOR THE FIRST DISTRICT
STATE OF FLORIDA ________________________________________
FLORIDA FINANCIAL IMPACT ESTIMATING CONFERENCE,
Appellant,
v.
ALL VOTERS VOTE, INC., a Florida Corporation, et al.
Appellees,
INITIAL BRIEF OF FINANCIAL IMPACT ESTIMATING CONFERENCE
Second Judicial Circuit Case No. 2020-CA-784 ______________________________________________________________________________________________________________________________
DANIEL NORDBY (FBN 14588) BENJAMIN GIBSON (FBN 58661)
AMBER STONER NUNNALLY (FBN 109281)
SHUTTS & BOWEN LLP 215 South Monroe Street, Suite 804
Tallahassee, Florida 32301 (850) 241-1717
[email protected] [email protected]
Counsel for Florida Financial Impact Estimating Conference
Filing # 112369622 E-Filed 08/25/2020 04:58:12 PM
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TABLE OF CONTENTS
TABLE OF CITATIONS ......................................................................................... iii
INTRODUCTION .....................................................................................................1
STATEMENT OF THE CASE AND FACTS ...........................................................3
SUMMARY OF ARGUMENT .............................................................................. 14
STANDARD OF REVIEW .................................................................................... 15
ARGUMENT .......................................................................................................... 16
I. THE FINANCIAL IMPACT STATEMENT COMPLIES WITH SECTION 100.371(13), FLORIDA STATUTES. ......................................................... 16
A. The Financial Impact Statement is clear and unambiguous. ............. 17
B. The Financial Impact Statement otherwise complies with the requirements of Florida law. .............................................................. 30
II. IN THE ALTERNATIVE, THE FIEC’S AFFIRMATIVE DEFENSE OF LACHES PRECLUDED SUMMARY JUDGMENT IN FAVOR OF THE SPONSOR. ................................................................................................... 30
CONCLUSION ....................................................................................................... 36
CERTIFICATE OF SERVICE AND COMPLIANCE .......................................... 37
iii
TABLE OF CITATIONS
CASES Adv. Op. to Att’y Gen. re All Voters Vote in Primary Elections for
State Legislature, Governor, and Cabinet, 291 So. 3d 901 (Fla. 2020) ........................................................................... 10, 25
Adv. Op. to Att’y Gen. re Raising Florida’s Minimum Wage, 285 So. 3d 1273 (Fla. 2019) ......................................................................... 10, 32
Adv. Op. to Att'y Gen. re Referenda Required for Adoption & Amend. of Local Gov't Comp. Land Use Plans, 963 So. 2d 210 (Fla. 2007) ........................................................................... 16, 24
Adv. Op. to Att’y Gen. re Referenda Required for Adoption & Amend. of Local Gov’t Comp. Land Use Plans, 992 So. 2d 190 (Fla. 2008) ........................................................................... 24-25
Adv. Op. to Att’y Gen. re Use of Marijuana for Debilitating Med. Conditions, 181 So. 3d 471 (Fla. 2015) ................................................................................. 16
Adv. Op. to Att’y Gen. re Water & Land Conservation, 123 So. 3d 47 (Fla. 2013) ............................................................................. 16, 30
Cobb v. Thurman, , 957 So. 2d 638 (Fla. 1st DCA 2006) .................................................................. 34
Echevarria v. Lennar Homes, LLC, 45 Fla. L. Weekly D1567 (Fla. 3d DCA July 1, 2020) ...................................... 35
Hollinger v. Hollinger, 292 So. 3d 537 (Fla. 5th DCA 2020) ................................................................. 35
Kuria v. BMLRW, LLLP, 101 So. 3d 425 (Fla. 1st DCA 2012) .................................................................. 15
Levey v. Dijols, 990 So. 2d 688 (Fla. 4th DCA 2008) ................................................................. 34
iv
Nelson v. City of Sneads, 921 So. 2d 760 (Fla. 1st DCA 2006) .................................................................. 31
Stop & Shoppe Mart, Inc. v. Mehdi, 854 So. 2d 784 (Fla. 5th DCA 2003) ................................................................. 35
Thomas v. Ocwen Loan Servicing, LLC, 84 So. 3d 1246 (Fla. 1st DCA 2012) ............................................................ 31, 35
Van Meter v. Kelsey, 91 So. 2d 327 (Fla. 1956) ................................................................................... 32
Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000) ................................................................................. 15
CONSTITUTIONAL PROVISIONS
Art. XI, § 5, Fla. Const. ................................................................................... 1, 3, 27
FLORIDA STATUTES
§ 100.371, Fla. Stat. ......................................................................................... passim
§ 101.62, Fla. Stat. ................................................................................................... 33
§ 102.111, Fla. Stat. ................................................................................................. 34
1
INTRODUCTION
Before any election is held to consider the adoption of a constitutional
amendment proposed by initiative, the Florida Constitution requires a statement to
the public regarding “the probable financial impact” of the proposed amendment.
Art. XI., § 5(c), Fla. Const. This “financial impact statement” is adopted by the
Financial Impact Estimating Conference (the “FIEC”), a state entity consisting of
four principals with appropriate fiscal expertise appointed from the professional
staff of the Executive Office of the Governor, the Florida Legislature’s Office of
Economic and Demographic Research, the Florida Senate, and the Florida House
of Representatives. § 100.371(13)(c)1., Fla. Stat. Financial impact statements must
be “clear and unambiguous” and “no more than 150 words in length.”
§ 100.371(13)(c)2., Fla. Stat.1 Within the 150-word limit, the financial impact
statement must represent the consensus or majority view of the FIEC principals
regarding the “estimated increase or decrease in any revenues or costs to state or
local governments, estimated economic impact on the state and local economy,
and the overall impact to the state budget resulting from the proposed initiative.”
§ 100.371(13)(a), Fla. Stat.
This case involves a challenge to the Financial Impact Statement for
1 All citations are to the 2019 Florida Statutes unless otherwise indicated.
2
Amendment 3, a ballot initiative that would establish a “top two” or “jungle”
primary in elections for the Florida Legislature, Governor, and Cabinet offices (the
“Proposed Amendment”). The FIEC submitted its Financial Impact Statement for
the Proposed Amendment to the Secretary of State and Attorney General just over
one year ago, on August 23, 2019. One week ago, on August 18, 2020, a circuit
judge in the Second Judicial Circuit ruled that the Financial Impact Statement was
“unclear and ambiguous” and ordered the FIEC to submit a revised Financial
Impact Statement to the Secretary of State by August 28, 2020. Vote-by-mail
ballots for the 2020 General Election will soon be finalized, printed, and mailed to
voters.
The trial court erred as a matter of law in concluding that the Financial
Impact Statement for the Proposed Amendment is unclear and ambiguous in
ordering the FIEC to submit a revised Financial Impact Statement to the Secretary
of State by August 28, 2020. Because the existing Financial Impact Statement
adopted by the FIEC is clear and unambiguous and complies with all applicable
legal standards, this Court should reverse the trial court’s ruling and remand for
entry of final judgment in favor of the FIEC. In the alternative, the Court should
reverse the trial court’s order granting summary judgment to the Sponsor because
the FIEC’s affirmative defense of laches barred relief.
3
STATEMENT OF THE CASE AND FACTS
On April 23, 2020, Appellee All Voters Vote, Inc.—the sponsor of the
Proposed Amendment entitled All Voters Vote in Primary Elections for State
Legislature, Governor, and Cabinet (“Sponsor”)—filed a single-county Complaint
for Declaratory Relief in the Second Judicial Circuit challenging the Financial
Impact Statement adopted by the FIEC for the Proposed Amendment. Specifically,
the Sponsor alleged that the Financial Impact Statement violates section
100.371(13) of the Florida Statutes because it is allegedly “unclear, ambiguous,
and misleading.” App. 39. After expedited briefing on cross-motions for summary
judgment, the trial court issued an order granting summary judgment in favor of
the Sponsor. App. 715-717. The FIEC now appeals.
Overview of the Financial Impact Estimating Conference
The Florida Constitution requires the Florida Legislature to provide “a
statement to the public regarding the probable financial impact of” a constitutional
amendment proposed by initiative. Art. XI, § 5(c), Fla. Const. The FIEC was
established “to review, analyze, and estimate the financial impact of amendments
to . . . the State Constitution proposed by initiative.” § 100.371(13)(c)1., Fla. Stat.
By law, each FIEC consists of four principals with appropriate fiscal expertise on
the subject matter of the proposed amendment—one person appointed from the
4
Executive Office of the Governor, one person appointed from the professional
staff of the Florida House of Representatives, one person appointed from the
professional staff of the Florida Senate, and the coordinator of the Office of
Economic and Demographic Research. Id.; App. 293.
The Financial Impact Statement for the Proposed Amendment
In developing the Financial Impact Statement, the FIEC heard presentations
from Maria Matthews, Director of the Division of Elections of the Florida
Department of State, and Paul Lux, Supervisor of Elections from Okaloosa County
and Past President of the Florida State Association of Supervisors of Elections
(“FSASE”). App. 298. Ms. Matthews and Mr. Lux testified about the Proposed
Amendment’s potential financial impact on their respective offices. Id. Ms.
Matthews, on behalf of the Florida Department of State, stated there would be no
more than a nominal financial impact at the state level and that any financial
impact will mostly be experienced at the local level. Id. Supervisor Lux detailed
possible ballot design changes and associated costs supervisors of elections may
experience due to the Proposed Amendment. Id.
Neither of the Sponsor’s two designated representatives attended any of the
scheduled meetings of the FIEC in August 2019 to answer questions or make a
formal presentation on the Proposed Amendment. App. 299. The Sponsor instead
5
submitted a letter to the FIEC asserting the Proposed Amendment: “(i) will have
no economic impact on the state or local economy; (ii) will not result in any
increase or decrease in revenues to state or local governments; and (iii) will not
result in any increase or decrease in costs to state or local governments and, if
there is any increase in costs it would be negligible.” App. 299. Compared to other
FIECs, the Sponsor here was less interactive in the development of the Financial
Impact Statement. App. 212.
In formulating its estimates in accordance with the law, the FIEC
communicated with the states of California and Washington, which have primary
election processes similar to the Proposed Amendment, and obtained research
from the National Conference of State Legislatures. App. 130, 300. The FIEC also
developed a survey that was sent to all 67 county supervisors of elections in
Florida to estimate the projected costs and savings to local governments that
would result from the implementation of the Proposed Amendment. Id.
The FIEC’s methodology mirrored the standard practice used by the
Legislature’s Revenue Estimating Conference when determining local government
financial impacts. App. 161. That practice involves conducting surveys and
obtaining information from local administrators, and evaluating whether the
statewide responses received are a sufficient enough representation based on the
6
issue at hand. Id. In the same way, the FIEC here relied heavily on the responses
received from supervisors of elections, because it was determined that county
supervisors were in the best position to determine the financial impact of the
Proposed Amendment on local governments. Id.; App. 134.
The FSASE assisted the FIEC by notifying and encouraging supervisors to
complete the survey questionnaire. App. 134. The FIEC received responses from
33 supervisors throughout the state (a 49% response rate). Id. This was considered
a strong response rate by the FIEC and a sufficient representation of the county
supervisors of elections statewide. App. 144.
Supervisors were asked whether the Proposed Amendment would increase
costs or savings for their offices. App. 300. If so, supervisors were requested to
identify the areas where they would incur additional costs or realize savings
including: 1) compiling results, 2) equipment at polling sites, 3) mailing, 4)
number of polling sites, 5) printing, 6) programming, 7) staffing, and 8) other.
App. 300. Of the 33 responses, for fiscal years 2023-24 through 2028-29: 1) Six
supervisors indicated $0 in implementation costs; 2) Fifteen supervisors indicated
implementation costs greater than $0; and 3) Eleven supervisors indicated that
implementation costs were unknown. App. 301.
Because the cost estimate received from Broward County was significantly
7
higher than similar counties, it was an outlier, and the FIEC decided to exclude it
in order to avoid distorting the final results. App. 166-168; 301. No supervisor
reported anticipated cost savings from implementing the Proposed Amendment
other than $0 or unknown, therefore, no savings analysis was conducted by the
FIEC. App. 302.
After receiving the supervisors’ responses, the FIEC reviewed the data and
divided the counties into five groups based on the number of active registered
voters in each county as of June 30, 2019. App. 301. In doing so, the FIEC
observed a natural break in the data that made the assignment to county groups
reasonable. Id.; App. 177-185. For example, Group 1 included the large counties
of Broward, Hillsborough, Miami-Dade, Orange, and Palm Beach; and Group 5
consisted of 28 small counties such as Baker, Calhoun, Liberty, and Wakulla. App.
301. The average cost for each of the five groups was calculated based on the
counties in each group that responded to the survey indicating a cost figure or
indicating costs were $0. App. 303. The group’s average costs excluded counties
that did not respond to the survey or that indicated costs were “unknown.” Id.
Calculation of each group’s average cost was then multiplied by the
number of counties within the group to calculate the estimate of the group’s total
cost. App. 302. Each group’s total cost was then added together to determine the
8
projected statewide costs to local governments. Id.
On August 23, 2019, in accordance with section 100.371(13)(a), the FIEC
completed and submitted its analysis and Financial Impact Statement for the
Proposed Amendment to the Attorney General and Secretary of State. App. 293-
294. The FIEC’s consensus Financial Impact Statement of no more than 150
words stated:
All Voters Vote in Primary Elections for State Legislature, Governor, and Cabinet (19-07)
It is probable that the proposed amendment will result in additional local government costs to conduct elections in Florida. The Financial Impact Estimating Conference projects that the combined costs across counties will range from $5.2 million to $5.8 million for each of the first three election cycles occurring in even-numbered years after the amendment's effective date, with the costs for each of the intervening years dropping to less than $450,000. With respect to state costs for oversight, the additional costs for administering elections are expected to be minimal. Further, there are no revenues linked to voting in Florida. Since there is no impact on state costs or revenues, there will be no impact on the state's budget. While the proposed amendment will result in an increase in local expenditures, this change is expected to be below the threshold that would produce a statewide economic impact.
App. 295.
In addition to the Financial Impact Statement of no more than 150 words,
the FIEC also drafted a “long-form” initiative financial information statement in
accordance with section 100.371(13)(e)3., Florida Statutes. App. 21-32. The
9
initiative financial information statement “describe[s] in greater detail than the
financial impact statement any projected increase or decrease in revenues or costs
that the state or local governments would likely experience and the estimated
economic impact on the state and local economy if the ballot measure were
approved.” § 100.371(13)(e)3., Fla. Stat. The initiative financial information
statement includes “both a summary of not more than 500 words and additional
detailed information that includes the assumptions that were made to develop the
financial impacts, workpapers, and any other information deemed relevant by the
Financial Impact Estimating Conference.” Id. Both the Secretary of State and the
Office of Economic and Demographic Research are required to make available on
the internet “each initiative financial information statement in its entirety.”
§ 100.371(13)(e)5., Fla. Stat. The summary from the initiative financial
information statement is also “available at each polling place and at the main
office of the supervisor of elections upon request.” § 100.371(13)(e)4., Fla. Stat.
Florida Supreme Court Proceedings
On December 19, 2019, the Florida Supreme Court issued a unanimous
opinion concluding that it lacks original jurisdiction under article V, section 3, of
the Florida Constitution to review financial impact statements in the form of an
advisory opinion to the Attorney General as is contemplated by section
10
100.371(13), Florida Statutes. See Adv. Op. to Att’y Gen. re: Raising Florida’s
Minimum Wage, 285 So. 3d 1273, 1280 (Fla. 2019) (“Because a financial impact
statement is not an initiative petition and does not constitute any part of an
initiative petition under the Florida Constitution or under the system the
Legislature has created for the preparation and publication of these separate
documents, any issues pertaining to the financial impact statement fall outside the
scope of direct review authorized by article V, section 3(b)(10)”). The Court noted
that its decision “does not preclude a challenge to a financial impact statement in
circuit or county court, by declaratory judgment action under current law.” Id. at
1281 n.4.
On March 19, 2020, the Florida Supreme Court issued its advisory opinion
to the Attorney General approving the Proposed Amendment for placement on the
ballot. Adv. Op. to Att’y Gen. re: All Voters Vote in Primary Elections for State
Legislature, Governor, and Cabinet, 291 So. 3d 901 (Fla. 2020). Under Raising
Florida’s Minimum Wage, the Supreme Court did not review the Financial Impact
Statement for the Proposed Amendment.
Proceedings before the Trial Court
On April 23, 2020, the Sponsor filed a complaint in circuit court
challenging the validity of the Financial Impact Statement under section
11
100.371(13), Florida Statutes. App. 5-32. On June 9, 2020, the Sponsor filed an
Amended Complaint to substitute the FIEC as a Defendant in place of the
individual FIEC principals. App. 33-48. The FIEC answered the Amended
Complaint on June 23, 2020, and asserted the doctrine of laches as an affirmative
defense. App. 53-61.
The trial court proceedings were expedited by agreement of the parties
because this case involves the placement of the Financial Impact Statement on the
November 2020 General Election ballot. App. 76-77. The parties filed cross-
motions for summary judgment agreeing no disputed issues of material fact exist
regarding the validity of the Financial Impact Statement and that the single claim
for declaratory relief could be resolved on final summary judgment. App. 97-396.
The FIEC’s Motion for Summary Final Judgment argued the Financial Impact
Statement: 1) complies with section 100.371(13) because it is clear and
unambiguous, addresses the required topics, and is fewer than 150 words; 2)
appropriately determines the probable financial impact; 3) accurately provides the
“combined costs across all counties”; and 4) is not required to provide a county-
by-county breakdown of costs. App. 384-396. The FIEC’s Motion also argued that
the affirmative defense of laches precluded the equitable relief sought by the
Sponsor. App. 395. The FIEC filed the deposition transcript of Amy Baker, the
12
Coordinator of the Florida Legislature’s Office of Economic and Demographic
Research and the FIEC’s corporate representative, in support of its Motion for
Summary Final Judgment. App. 397-586.
The Sponsor’s Dispositive Motion for Summary Judgment argued the
Sponsor was entitled to declaratory and injunctive relief because the Financial
Impact Statement was unclear and ambiguous, but did not address the FIEC’s
affirmative defense of laches. App. 81-96. The Sponsor filed a Declaration of
Glenn Burhans, Jr., Chair of All Voters Vote, Inc., in support of its Dispositive
Motion for Summary Judgment. App. 97-383.
On August 10, 2020, the FIEC and the Sponsor each filed responses in
opposition to one another’s motions for summary judgment. App. 630-650.
Following an expedited hearing on the cross motions for summary
judgment, on August 18, 2020, the trial court issued an Order Granting Summary
Judgment for Plaintiff and Remanding the Financial Impact Statement to the FIEC.
App. 715-717. The Order: 1) granted the Sponsor’s Dispositive Motion for
Summary Judgment; 2) denied the FIEC’s Motion for Summary Final Judgment;
3) “remanded” the Financial Impact Statement to the FIEC for redrafting; and 4)
ordered the FIEC to “submit a compliant [Financial Impact Statement] to the
Secretary [of State] by noon on August 28, 2020.” Id.
13
The trial court’s Order found the “portions of the financial impact statement
relating to costs to the state being minimal, the lack of impact on state costs or
revenues, the lack of impact on the state’s budget, and the lack of statewide
economic impact” to be “clear and unambiguous.” App. 717. But the trial court
also found “the remaining language dealing with potential local governmental
costs” to be “unclear and ambiguous.” Id. Finally, the trial court found that the
FIEC’s affirmative defense of laches “does not bar this suit as this case was
pursued in a timely fashion.” Id.
Because the trial court’s order completed the judicial labor of the lower
tribunal by disposing of the Sponsor’s single-count complaint for declaratory
relief and the FIEC’s only affirmative defense on the merits, and left no questions
open for judicial determination, the order constitutes an appealable final order.
Fla. R. App. P. 9.100(a)(1). In the alternative, the order constitutes an appealable
non-final order because it grants injunctive relief by compelling the FIEC to take
action in response to the order. Fla. R. App. P. 9.130(a)(3)(B).
Proceedings before this Court
The FIEC promptly appealed the trial court’s order. App. 718-722. On
August 19, 2020, the FIEC filed a suggestion with this Court for pass-through
certification to the Florida Supreme Court, which was joined by the Sponsor on
14
the following day. On August 20, 2020, this Court entered an order that denied the
parties’ unopposed suggestion for pass-through certification but expedited
briefing. The FIEC submits this Initial Brief in accordance with the Court’s
expedited briefing schedule.
SUMMARY OF ARGUMENT The Financial Impact Statement for the Proposed Amendment clearly and
unambiguously addresses each of the topics required to be addressed by Florida
law in fewer than 150 words, and accurately reflects the consensus conclusions
reached by the FIEC following its review and analysis of the probable financial
impact of the Proposed Amendment. The trial court erred as a matter of law in
concluding that the Financial Impact Statement is unclear and ambiguous in its
description of the FIEC’s consensus conclusions regarding the estimated increase
in costs to local governments resulting from the Proposed Amendment. This Court
should reverse and remand for the entry of final judgment in favor of the FIEC.
In the alternative, the FIEC’s affirmative defense of laches should have
precluded the trial court from granting summary judgment in favor of the Sponsor.
Even if this Court were to find the Financial Impact Statement to be unclear or
ambiguous in some respect, the Sponsor’s delay in asserting its claim has
prejudiced the FIEC’s ability to address an adverse ruling in light of the rapidly
15
approaching deadline for printing ballots for the November 2020 General Election.
Because the Sponsor did not refute factually the FIEC’s affirmative defense of
laches, and because the Sponsor did not show that the FIEC’s affirmative defense
of laches was legally insufficient, the trial court erred in granting summary
judgment to the Sponsor.
STANDARD OF REVIEW
An order granting summary judgment is reviewed de novo. Volusia Cnty. v.
Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000); Kuria v.
BMLRW, LLLP, 101 So. 3d 425, 426 (Fla. 1st DCA 2012). “Summary judgment is
proper if there is no genuine issue of material fact and if the moving party is
entitled to a judgment as a matter of law.” Volusia Cnty, 760 So. 2d at 130.
Florida law requires financial impact statements for proposed amendments
to the state constitution to be “clear and unambiguous” and “no more than 150
words in length.” § 100.371(13)(c)2., Fla. Stat. Within the 150-word limit, the
financial impact statement must represent the consensus or majority view of the
FIEC principals, id., regarding the “estimated increase or decrease in any revenues
or costs to state or local governments, estimated economic impact on the state and
local economy, and the overall impact to the state budget resulting from the
proposed initiative.” § 100.371(13)(a), Fla. Stat.
16
Judicial review of a financial impact statement is “narrow.” Adv. Op. to
Att’y Gen. re Water & Land Conservation, 123 So. 3d 47, 52 (Fla. 2013). A court
may only determine whether the statement is clear, unambiguous, consists of no
more than 150 words, and is limited to addressing the topics set forth in section
100.371(13)(a). Id.; Adv. Op. to Att’y Gen. re Use of Marijuana for Debilitating
Med. Conditions, 181 So. 3d 471, 479 (Fla. 2015).
ARGUMENT
I. THE FINANCIAL IMPACT STATEMENT COMPLIES WITH SECTION 100.371(13), FLORIDA STATUTES.
The Financial Impact Statement for the Proposed Amendment approved by
the Financial Impact Estimating Conference in August 2019 readily satisfies the
requirements of Florida law. The Financial Impact Statement clearly and
unambiguously addresses each of the required topics in fewer than 150 words, and
it accurately reflects the consensus conclusions reached by the FIEC following its
review and analysis of those topics. § 100.371(13), Fla. Stat.; Adv. Op. to Att'y
Gen. re Referenda Required for Adoption & Amend. of Local Gov't Comp. Land
Use Plans, 963 So. 2d 210, 214 (Fla. 2007). The trial court erred in concluding
that the Financial Impact Statement was unclear and ambiguous and in granting
summary judgment to the Sponsor. This Court should reverse.
17
A. The Financial Impact Statement is clear and unambiguous.
On August 23, 2019, the FIEC adopted a Financial Impact Statement that
clearly and unambiguously reflects the consensus conclusions reached by the
FIEC following its review and analysis of the topics required to be examined
under Florida law: “the estimated increase or decrease in any revenues or costs to
state or local governments, estimated economic impact on the state and local
economy, and the overall impact to the state budget resulting from the proposed
initiative.” § 100.371(13), Fla. Stat.
Every sentence of the Financial Impact Statement addresses a topic that
section 100.371(13) of the Florida Statutes requires the FIEC to analyze when
preparing a statement for placement on the ballot. Specifically:
Financial Impact Statement Section 100.371(13)(a) Topic
Addressed by Financial Impact Statement
It is probable that the proposed amendment will result in additional local government costs to conduct elections in Florida.
Estimated increase or decrease in costs to local governments
The Financial Impact Estimating Conference projects that the combined costs across counties will range from $5.2 million to $5.8 million for each of the first three election cycles occurring in even-numbered years after the amendment's effective date, with the costs for each of the intervening years dropping to less than $450,000.
Estimated increase or decrease in costs to local governments
18
With respect to state costs for oversight, the additional costs for administering elections are expected to be minimal.
Estimated increase or decrease in costs to state government
Further, there are no revenues linked to voting in Florida.
Estimated increase or decrease in revenue to state or local governments
Since there is no impact on state costs or revenues, there will be no impact on the state's budget.
Overall impact to the state budget
While the proposed amendment will result in an increase in local expenditures, this change is expected to be below the threshold that would produce a statewide economic impact.
Estimated economic impact on the state and local economy
In addressing each topic, the Financial Impact Statement clearly and
unambiguously reflects the FIEC’s consensus conclusions that are described at
length in the Initiative Financial Information Statement.
1. The trial court correctly concluded that the Financial Impact Statement is clear and unambiguous in most respects.
The trial court correctly found the portions of the Financial Impact
Statement relating to the FIEC’s estimated impact on costs and revenues to the
state, impact on the state budget, and estimated economic impact were “clear and
unambiguous.” App. 717. These conclusions were correct, as the Financial Impact
Statement clearly and unambiguously reflects the FIEC’s consensus conclusions
reached after its analysis of those topics. For example, the third sentence of the
Financial Impact Statement addresses the “estimated increase or decrease in costs
19
to state government” topic by stating, “With respect to state costs for oversight,
the additional costs for administering elections are expected to be minimal.” App.
20. This sentence from the Financial Impact Statement clearly and unambiguously
reflects the FIEC’s conclusion set forth in the Initiative Financial Information
Statement that “any additional costs accruing to state government are expected to
be minimal” because “elections are primarily operated at the local level.” App. 25;
see also App. 23 (describing statement of the Director of the Florida Division of
Elections that “the Department of State does not believe there will be any fiscal
impact beyond nominal at the state level and that the fiscal impact would most
likely be felt at the local level”).
The portions of the Financial Impact Statement addressing the “estimated
increase or decrease in any revenues” to state and local government, “overall
impact to the state budget,” and “estimated economic impact on the state and local
economy” likewise present a clear and unambiguous summary of the FIEC’s
conclusions set forth in the Initiative Financial Information Statement. See App.
25 (FIEC conclusion that “[t]he proposed amendment would have no impact on
state or local revenues because there is no relationship between the changes being
made and any state or local revenue stream”); App. 29 (FIEC conclusion that any
impact on the state budget resulting from the passage of the Proposed Amendment
20
would be “nominal”); App. 29 (describing FIEC conclusions on economic analysis
and its determination that the increase in local expenditures resulting from the
proposed amendment “is expected to be below the threshold that would produce
an economic impact” under the FIEC’s guideline economic metrics).
2. The trial court erred in concluding that the Financial Impact Statement is unclear and ambiguous in addressing the estimated increase in costs to local government.
The trial court nevertheless concluded that the Financial Impact Statement
was “unclear and ambiguous” in its “language dealing with potential local
governmental costs.” App. 717. As described below, the language used in the
Financial Impact Statement clearly, unambiguously, and accurately reflects the
FIEC’s consensus conclusions reached after its analysis of estimated increases or
decreases in costs to local governments. The trial court’s ruling to the contrary
appears to reflect a disagreement with the FIEC’s factual conclusions rather than
an assessment of the clarity or ambiguity of the language adopted by the FIEC in
the Financial Impact Statement. For these reasons, this Court should reverse.
The first sentence of the Financial Impact Statement clearly and
unambiguously reflects the FIEC’s conclusions regarding the estimated increase or
decrease in costs to local governments resulting from the Proposed Amendment
under section 100.371(13)(a), Florida Statutes. To reach its conclusions, the FIEC
21
conducted a survey of Florida’s county supervisors of elections. App. 25-28.
Nearly half of the supervisors of elections who responded to the survey indicated
that the anticipated implementation costs “would be a specific amount greater than
$0.” App. 26. Moreover, “[n]o supervisors reported anticipated savings other than
$0 or unknown.” App. 27. The Financial Impact Statement clearly and
unambiguously reflects the FIEC’s conclusions by stating that “[i]t is probable that
the proposed amendment will result in additional local government costs to
conduct elections in Florida.” App. 20.
The second sentence of the Financial Impact Statement also clearly and
unambiguously reflects the FIEC’s conclusions regarding the estimated increase or
decrease in costs to local governments resulting from the Proposed Amendment.
The FIEC reviewed the data produced by its survey and divided the counties into
five groups based on the number of active registered voters in each county as of
June 30, 2019. App. 301. In doing so, the FIEC observed a natural break in the
data that made the assignment to county groups reasonable. Id.; App. 177-185. For
example, Group 1 included the large counties of Broward, Hillsborough, Miami-
Dade, Orange, and Palm Beach; and Group 5 consisted of 28 small counties such
as Baker, Calhoun, Liberty, and Wakulla. App. 301. The average cost for each of
the five groups was calculated based on the counties in each group that responded
22
to the survey indicating a cost figure or indicating costs were $0. App. 303. The
group’s average costs excluded counties that did not respond to the survey or that
indicated costs were “unknown.” Id. Calculation of each group’s average cost was
then multiplied by the number of counties within the group to calculate the
estimate of the group’s total cost. App. 302. Each group’s total cost was then
added together to determine the projected statewide costs to county governments.
Id.
The FIEC’s conclusions with respect to the estimated combined costs to
local governments across Florida’s 67 counties are set forth in a statewide cost
extrapolation provided in the Initiative Financial Information Statement. App. 28.
The FIEC projected that local governments would experience a combined
estimated cost increase of between $5,210,095 and $5,765,138 in each of the first
three election cycles occurring in even numbered years after the Proposed
Amendment’s effective date. Id. The FIEC further concluded that the combined
estimated cost increase for local governments in the intervening years between
these three election cycles would range from $437,951 to $448,278. Id. The
Financial Impact Statement clearly and unambiguously reflects these conclusions
by stating that the FIEC “projects that the combined costs across counties will
range from $5.2 million to $5.8 million for each of the first three election cycles
23
occurring in even-numbered years after the amendment's effective date, with the
costs for each of the intervening years dropping to less than $450,000.” App. 20.
The trial court’s written ruling does not identify a specific basis upon which
the court found the Financial Impact Statement to be “not clear” or “ambiguous”
in addressing the estimated increase in costs to local government, but referred to
“the reasons announced by the court at the hearing.” App. 716; see also App. 717
(stating that “the remaining language dealing with potential local governmental
costs is unclear and ambiguous”). At the hearing, the trial judge appeared to
identify two issues related to the Financial Impact Statement that he found
“unclear”: 1) the FIEC’s use of a statewide cost extrapolation of estimated costs to
local governments; and 2) the Financial Impact Statement’s reference to additional
local government costs to conduct elections in Florida, which the trial court found
to “imply[] that it’s going to be all the local governments.” App. 697; see also
App. 694 (judge’s statement that he “didn’t see how you can make the jump and
“imply similar financial impacts to counties of similar size if they did not respond
[to the FIEC’s survey]”). The trial court’s statements at the hearing do not support
a conclusion that the language used in the Financial Impact Statement is unclear or
ambiguous.
24
First, the Financial Impact Statement is not unclear or ambiguous merely
because it describes conclusions derived from underlying assumptions made by
the FIEC. The governing law recognizes that the FIEC’s analysis reflected in the
Financial Impact Statement will rely upon various assumptions. See
§ 100.371(13)(e)3., Fla. Stat. (providing for the long-form initiative financial
information statement to include “the assumptions that were made to develop the
financial impacts”). The FIEC’s assumptions here reflect the comprehensive data
it received from local supervisors of elections, which was then analyzed to
estimate the probable statewide “increase or decrease in any revenues or costs to
state or local governments” as required by section 100.371, Florida Statutes. App.
25-28. The FIEC’s methodology here mirrored the standard practice used by the
Legislature’s Revenue Estimating Conference when determining local government
financial impacts. App. 161.
In its Dispositive Motion for Summary Judgment below, the Sponsor cited
Adv. Op. to Att’y Gen. re Referenda Required for Adoption & Amendment of Local
Gov’t Comprehensive Land Use Plans, 963 So. 2d 210 (Fla. 2007) (“Land Use II”)
and Adv. Op. to Att’y Gen. re Referenda Required for Adoption & Amendment of
Local Gov’t Comprehensive Land Use Plans, 992 So. 2d 190 (Fla. 2008) (“Land
Use III”) to support its contention that the Financial Impact Statement here makes
25
underlying assumptions that are “purely speculative.” App. 91. Both cases are
distinguishable.
In Land Use II, the Florida Supreme Court found a financial impact
statement invalid for stating that “[o]ver each two year election cycle, local
governments cumulatively will incur significant costs (millions of dollars
statewide).” 992 So. 2d at 214-15. The Court faulted the statement because it
“assumes that numerous local governments will have out-of-cycle changes to their
respective comprehensive land use plans, necessitating special elections” when the
“purpose of the proposed amendment is to limit the amount of revisions to a
county’s or a city’s comprehensive land use plan.” Id at 215. The Financial Impact
Statement here does not speculate about how many elections there will be for
governor, cabinet, and state legislature—those elections are set by law. And the
FIEC here did not assume the proposed amendment will fail at accomplishing its
stated purpose: “to allow all registered voters to vote in primary elections for state
legislature, governor, and cabinet.” All Voters Vote in Primary Elections for State
Leg., Governor, and Cabinet, 291 So. 3d at 905. The Financial Impact Statement
here therefore does not suffer from the same deficiencies identified in Land Use II.
992 So. 2d at 215.
26
Land Use III (involving the Supreme Court’s review of the re-drafted
financial impact statement from Land Use II) is also distinguishable. In Land Use
III, a divided Supreme Court found the financial impact statement invalid because
it stemmed from “speculative assumptions with regard to how often local
governments will seek to adopt or amend their comprehensive land use plans.” Id.
at 193. As mentioned above, the FIEC here did not need to “assume” the number
of elections the proposed amendment will affect. The anticipated costs here are
also not speculative, but are the product of a request for information from the local
government officials who would incur those costs, and a reliable methodology to
estimate those costs from local governments that did not respond to the FIEC’s
request for information with a specific estimated cost effect. App. 25-28.
In Land Use III, the Supreme Court also found a financial impact
statement’s vague reference to “significant costs” and “millions of dollars” to be
imprecise (implying a potential range of $2 million to $999 million) and thus
misleading as to the potential range of the proposed amendment. Id at 193. Here,
the Financial Impact Statement provides a precise range of costs to local
governments, stating “the combined costs across counties will range from $5.2
million to $5.8 million for each of the first three election cycles occurring in even-
numbered years after the amendment’s effective date, with the costs for each
27
intervening year dropping to less than $450,000.” App. 20. Contrary to Land Use
III, the range of costs here is precise and is not based on speculative assumptions
the FIEC made contrary to the purpose of the amendment. The Land Use II and
Land Use III decisions do not support the trial court’s conclusion.
Second, the Financial Impact Statement’s references to “additional local
government costs to conduct elections in Florida” and the “combined costs across
counties” are not unclear or ambiguous. Section 100.371(13)(a) requires the FIEC
to analyze, among other things, the “estimated increase or decrease in any . . .
costs to . . . local governments . . . resulting from the proposed initiative.” The
FIEC conducted precisely that analysis here by calculating an estimate of the total
statewide costs to local governments resulting from the Proposed Amendment.
App. 25-28. The Financial Impact Statement clearly and unambiguously reflects
the FIEC’s conclusions by describing the estimate as a projection of the
“combined costs across counties” rather than an estimate of the costs in each
individual county. App. 20.
Finally, although they did not appear to form the basis of the trial court’s
ruling, the Sponsor also argued below that the Financial Impact Statement is
unclear or ambiguous on two additional grounds. Neither of these alternative
grounds provides a basis to affirm the trial court’s ruling. First, the Sponsor argued
28
below that the first and last sentences of the FIS are irreconcilable and ambiguous
because the first sentence states “[i]t is probable that the proposed amendment will
result in additional local government costs” and the last sentence states “the
proposed amendment will result in an increase in local expenditures.” App. 88-89.
The Florida Constitution requires “a statement to the public regarding the
probable financial impact of any amendment proposed by initiative.” Art. XI,
§ 5(c), Fla. Const. (emphasis added). The use of the term “probable” in the
Financial Impact Statement merely reflects the standard set forth in the Florida
Constitution.
The Sponsor also argued below that the Financial Impact Statement is
misleading because it “fails to identify whether and which counties” will
experience cost increases and “voters will want to know whether and how their
particular county might be impacted.” App. 41-42. Notwithstanding the Sponsor’s
speculation about what voters might “want to know,” nothing in section 100.371
requires a county-by-county cost breakdown to be set forth in a financial impact
statement. As a practical matter, the 150-word limit would make it impossible to
identify cost and revenue impacts on a county-by-county basis: listing the names
of Florida’s 67 counties would itself require nearly half of the total word limit.
App. 265-266.
29
As noted above, voters seeking more detailed information about the
probable financial impact of a proposed amendment have a separate state resource
available to them: the long-form initiative financial information statement also
produced by the FIEC, which “describe[es] in greater detail than the financial
impact statement any projected increase or decrease in revenues or costs that the
state or local governments would likely experience and the estimated economic
impact on the state and local economy if the ballot measure were approved.”
§ 100.371(13)(e)3., Fla. Stat. This more detailed financial information statement
“may include both estimated dollar amounts and a description placing the
estimated dollar amounts into context.” Id. And the detailed financial information
statement “must include both a summary of not more than 500 words and
additional detailed information that includes the assumptions that were made to
develop the financial impacts, workpapers, and any other information deemed
relevant by the Financial Impact Estimating Conference.” Id. A copy of the 500-
word summary from the financial information statement is available to voters at
every polling place and on the websites of the Secretary of State and local
Supervisors of Elections. § 100.371(13)(e)4.-5., Fla. Stat.
The 150-word Financial Impact Statement is not required by law to contain
the detailed information requested by the Sponsor. Because the Financial Impact
30
Statement here is clear and unambiguous, the trial court’s ruling in favor of the
Sponsor should be reversed and remanded with direction to enter final judgment in
favor of the FIEC.
B. The Financial Impact Statement otherwise complies with the requirements of Florida law.
In addition to being “clear and unambiguous,” the Financial Impact
Statement adopted by the FIEC can be “no more than 150 words in length” and is
limited to addressing the topics set forth in section 100.371(13)(a), Florida
Statutes. See, e.g., Water & Land Conservation, 123 So. 3d at 52. It is undisputed
that the Financial Impact Statement here complies with the word limit and
addresses only the topics required by law.
Because the Financial Impact Statement complies with section 100.371(13),
Florida Statutes, the trial court’s order granting summary judgment in favor of the
Sponsor should be reversed and remanded with direction to enter final judgment in
favor of the FIEC.
II. IN THE ALTERNATIVE, THE FIEC’S AFFIRMATIVE DEFENSE OF LACHES PRECLUDED SUMMARY JUDGMENT IN FAVOR OF THE SPONSOR.
Because the Financial Impact Statement is clear, unambiguous, and is
limited to addressing the topics set forth in Florida law within the 150-word limit,
this Court should reverse the trial court’s ruling and remand for entry of final
31
judgment in favor of the FIEC. But even if this Court were to find the Financial
Impact Statement to be unclear or ambiguous in some respect, the trial court’s
order granting summary judgment and injunctive relief to the Sponsor and against
the FIEC should still be reversed. The Sponsor’s delay in asserting its claim has
prejudiced the FIEC’s ability to address an adverse ruling in light of the rapidly
approaching deadline for printing ballots for the November 2020 General Election.
The trial court’s error in concluding that the FIEC’s affirmative defense of laches
did not bar summary judgment therefore provides an alternative basis for reversing
the trial court’s ruling in favor of the Sponsor.
As this Court has noted, “[i]t is a well-worn principle that entitlement to
summary judgment requires a plaintiff-movant to refute factually all affirmative
defenses or show they are legally insufficient.” Thomas v. Ocwen Loan Servicing,
LLC, 84 So. 3d 1246 (Fla. 1st DCA 2012). “Once a movant shows the absence of
any genuine issues of material fact on its claims, it must go the next step and
factually refute affirmative defenses or show they are legally insufficient.” Id.; see
also Nelson v. City of Sneads, 921 So. 2d 760 (Fla. 1st DCA 2006) (reversing
summary judgment on grounds that material factual questions existed with regard
to elements of the defendant’s affirmative defense of laches).
To establish the defense of laches, a defendant must establish: 1) conduct on
32
the part of the defendant giving rise to the situation of which the complaint is
made; 2) the plaintiff, having had knowledge of the defendant's conduct, and
having been afforded the opportunity to institute suit, is guilty of not asserting his
rights by suit; 3) lack of knowledge on the defendant's part that the plaintiff will
assert the right on which he bases his suit; and 4) injury or prejudice to the
defendant in the event relief is accorded to the plaintiff or the suit is held not to be
barred. See, e.g., Van Meter v. Kelsey, 91 So. 2d 327, 330-31 (Fla. 1956).
Here, it was undisputed below that the Financial Impact Statement
challenged by the Sponsor was approved by the FIEC and transmitted to the
Secretary of State and Attorney General on August 23, 2019. App. 18-19. It was
undisputed below that the Florida Supreme Court issued an opinion on December
19, 2019, concluding that it lacks original jurisdiction under Article V, Section 3
of the Florida Constitution to review financial impact statements but that its
decision “does not preclude a challenge to a financial impact statement in circuit
or county court, by declaratory judgment action under current law.” Raising
Florida’s Minimum Wage, 285 So. 3d at 1280-81 n.4. It was undisputed below
that the Sponsor filed its Complaint on April 23, 2019. App. 5.
The sworn deposition testimony of the FIEC’s corporate representative,
submitted in support of the Sponsor’s Dispositive Motion for Summary Judgment,
33
established that the FIEC would be prejudiced by the trial court’s granting of relief
to the plaintiff. See App. 282 (testimony of Amy Baker as corporate representative
for FIEC that “certainly, we are at a point now where you're pushing up against
what I know to be deadlines for the Department of State. And it will be very hard
to try to deal with any remedy at this point, if we could, if it is something that we
could even deal with in the midst of a pandemic, in the midst of our summer
requirements to do estimating conferences. So, it is like the window is getting very
tight to try to deal with this.”); see also App. 284 (Ms. Baker noting the “practical
difficulty with how close I know that any -- You know, within the next month, the
Department of State is going to have to put together the ballots, and it is just
unfortunate, but this is where we are. We are, like, right up to the deadline of . . .
And I'm not sure that there is going to be enough time to act in how we put new
procedures in place.”). This testimony was unrebutted by any counter-affidavits or
other summary judgment evidence.
The sworn deposition testimony of the FIEC’s corporate representative
regarding the shortness of time is well founded. Although there is no statutory
deadline for finalizing and printing ballots, section 101.62 of the Florida Statutes
requires supervisors of elections to send vote-by-mail ballots to absent uniformed
services and overseas voters no less than 45 days before a general election. This
34
year, that date is September 19, 2020. Ballots must be finalized, ordered, and
printed in advance of the mailing deadline. Before ballots are finalized, the
primary election results must also be certified by the Elections Canvassing
Commission. Those certifications are expected to be completed by the ninth day
after the primary election: August 27, 2020. See § 102.111(2), Fla. Stat. After
these pivotal dates, printed ballots may be incapable of correction and separate
notice may be necessary to advise voters on subsequent changes to the ballot. See,
e.g., Cobb v. Thurman, 957 So. 2d 638 (Fla. 1st DCA 2006); Levey v. Dijols, 990
So. 2d 688, 695 (Fla. 4th DCA 2008).
The statutory scheme governing Financial Impact Statements also
recognizes the necessity of a final resolution regarding the ballot language well in
advance of the election. See § 100.371(13)(e)2., Fla. Stat. (providing that the
financial impact statement prepared by the FIEC “shall be deemed approved for
placement on the ballot” if, by 5 p.m. on the 75th day before the election, “the
Supreme Court has not issued an advisory opinion on the initial financial impact
statement.”); § 100.371(13)(c)3., Fla. Stat. (providing for default statement where
“the Supreme Court has rejected the initial submission by the Financial Impact
Estimating Conference and no redraft has been approved by the Supreme Court by
5 p.m. on the 75th day before the election.”). This year, the 75th day before the
35
2020 General Election was August 20, 2020.
The Sponsor did not file a reply seeking to avoid the FIEC’s affirmative
defense of laches as a matter of law and did not address the affirmative defenses in
its own affidavit in support of summary judgment. App. 97-100. “Under these
circumstances, ‘[w]here the movant merely denies the affirmative defenses and the
affidavit in support of summary judgment only supports the allegations of the
complaint and does not address the affirmative defenses, the burden of disproving
the affirmative defenses has not been met.’” Hollinger v. Hollinger, 292 So. 3d
537, 543 (Fla. 5th DCA 2020) (quoting Stop & Shoppe Mart, Inc. v. Mehdi, 854
So. 2d 784, 786 (Fla. 5th DCA 2003)).
Notwithstanding the Sponsor’s failure to “refute factually all affirmative
defenses or show that they are legally insufficient,” Thomas, 84 So. 3d at 1246, the
trial court ruled that “laches does not bar this suit as this case was pursued in a
timely fashion.” App. 717. The trial court had no summary judgment evidence
regarding the timeliness of the Sponsor’s lawsuit upon which to base this finding.
The Sponsor’s affidavit in support of summary judgment did not address the
FIEC’s affirmative defense. App. 97-100. And, of course, “[u]nsworn legal
argument of counsel is not evidence.” Echevarria v. Lennar Homes, LLC, 45 Fla.
L. Weekly D1567, 2020 WL 3551782 at n.2 (Fla. 3d DCA July 1, 2020).
36
Because the Sponsor did not refute factually the FIEC’s affirmative defense
of laches, and because the Sponsor did not show that the FIEC’s affirmative
defense of laches was legally insufficient, the trial court erred in granting summary
judgment to the Sponsor.
CONCLUSION
The trial court’s ruling should be reversed and remanded with instructions
to enter final judgment for the Financial Impact Estimating Conference on the
merits. In the alternative, the trial court’s ruling should be reversed and remanded
with instructions to vacate the order granting summary judgment to the Sponsor
and for further proceedings consistent with the Court’s opinion.
Respectfully submitted,
/s/ Daniel E. Nordby DANIEL E. NORDBY (FBN 14588) BENJAMIN GIBSON (FBN 58661) AMBER STONER NUNNALLY (FBN 109281) SHUTTS & BOWEN LLP 215 South Monroe Street, Suite 804 Tallahassee, FL 32301 850-241-1717 [email protected] [email protected] [email protected] Counsel for Florida Financial Impact Estimating Conference
37
CERTIFICATE OF SERVICE AND COMPLIANCE
I hereby certify that this computer-generated brief is prepared in Times New
Roman 14-point font and complies with the font requirement of Rule 9.210(a),
Florida Rules of Appellate Procedure, and that a copy of the foregoing was filed
on August 25, 2020, via electronic means through the Florida Courts E-Filing
portal and was served via electronic mail to:
Glenn Burhans Jr. Eugene E. Stearns Olivia Sanchez Stearns, Weaver, Miller, Weissler, Alhadeff, & Sitterson, P.A. 106 E. College Ave., Suite 700 Tallahassee, FL 32301 850-580-7200 [email protected] [email protected] [email protected] Counsel for All Voters Vote, Inc.
Bradley R. McVay Ashley E. Davis Florida Department of State R.A. Gray Building, Suite 100 500 South Bronough Street Tallahassee, FL 32399-0250 850-245-6536 [email protected] [email protected] [email protected] Counsel for Secretary of State
/s/ Daniel E. Nordby ATTORNEY
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