Miami-Dade County Board of County Commissioners v. an Accountable Miami-Dade , 208 So. 3d 724 ( 2016 )

Third District Court of Appeal
State of Florida
Opinion filed September 20, 2016.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-2090
Lower Tribunal No. 16-20844
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Miami-Dade County Board of County Commissioners, et al.,
Appellants,
vs.
An Accountable Miami-Dade, et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, William L.
Thomas, Judge.
Abigail Price-Williams, Miami-Dade County Attorney, and Oren Rosenthal
and Michael B. Valdes, Assistant County Attorneys, for appellants.
Greenspoon Marder and Joseph S. Geller (Fort Lauderdale); Ver Ploeg &
Lumpkin and Andrew L. Gordon; Benedict P. Kuehne and Michael T. Davis, for
appellees.
KYMP LLP and Juan-Carlos Planas, for Eric Zichella as Amicus Curiae.
Before SUAREZ, C.J., and LAGOA and EMAS, JJ.
LAGOA, J.
Appellants, Miami-Dade County Board of County Commissioners (the
“Board” or “County Commission”), Carlos Gimenez, in his capacity as Miami-
Dade County Mayor, and Christina White, in her capacity as Miami-Dade County
Supervisor of Elections (collectively “Appellants”), appeal from the trial court’s
entry of a writ of mandamus compelling Miami-Dade County to place on the
November 8, 2016 General Election ballot an initiative petition submitted by
Appellees, An Accountable Miami-Dade, Christian Ulvert, Tresnise Bryant,
Michelle Davis and Caroline Williams (collectively “Appellees”). For the reasons
set forth below, we reverse and vacate the writ.
I. FACTUAL AND PROCEDURAL HISTORY
a. The County’s Initiative Petition Process
In a September 10, 2002 election, the voters of Miami-Dade County approved
an amendment to their County Charter concerning the initiatory petition process. In
considering the issue, the voters were presented with the following ballot question:
County Question No. 9
Charter Amendment Placing Proposed Initiative Petitions on
Ballot Without Further County Commission Action
Shall the Charter be amended to provide that if an initiative petition is
deemed to be legally sufficient, the proposal shall be placed on the
ballot without requiring any further action by the Board of County
Commissioners, unless the Board determines to adopt the proposal?
(emphasis added).
2
The 2002 amendment is presently codified in Section 8.01 of the Charter.
Section 8.01, titled Initiative, Referendum, and Recall, provides in pertinent part as
follows1:
The electors of the county shall have the power to propose to the
Board of County Commissioners passage or repeal of ordinances and
to vote on the question if the Board refuses action, according to the
following procedure:
1. The person proposing the exercise of this power shall submit the
proposal, including proposed ballot language to the Clerk of the
Circuit Court who shall without delay approve as to form a petition
for circulation in one or several copies as the proposer may desire. A
public hearing shall be held on the proposal at the next Board of
County Commissioner meeting subsequent to the date the Clerk
approves the petition as to form.
2. The person or persons circulating the petition shall, within 120
days of the approval of the form of the petition, obtain the valid
signatures of voters in the county in numbers at least equal to four
percent of the registered voters in the county on the day on which the
petition is approved, according to the official records of the County
Supervisor of Elections. In determining the sufficiency of the petition,
no more than 25 percent of the valid signatures required shall come
from voters registered in any single county commission district. Each
signer of a petition shall place thereon, after his name, the date, and
1 The County’s process is somewhat analogous to the process governing citizen
initiatives for proposed amendments to the Florida constitution. Under that
process, the petition sponsor submits the initiative petition form to the Florida
Division of Elections. § 100.371(2), Fla. Stat. (2016). The Division reviews the
petition form for sufficiency of its format. Id. After the Division approves the
petition form, the sponsor circulates the petition for signatures by registered
Florida voters. Id. The petition is subsequently subject to signature verification by
the various county supervisors of elections, §100.371(3), Fla. Stat., and review for
legal sufficiency by the Florida Supreme Court. §§ 15.21, 16.061(1), Fla. Stat.
(2016). The petition is placed on the statewide ballot, accompanied by the
relevant financial impact statement, only after all of these requirements are met.
3
his place of residence or precinct number. Each person circulating a
copy of the petition shall attach to it a sworn affidavit stating the
number of signers and the fact that each signature was made in the
presence of the circulator of the petition.
3. The signed petition shall be filed with the Board which shall
within 30 days order a canvass of the signatures thereon to determine
the sufficiency of the signatures. If the number of signatures is
insufficient or the petition is deficient as to form or compliance with
this Section, the Board shall notify the person filing the petition that
the petition is insufficient and has failed.
4. The Board may within 30 days after the date a sufficient petition is
presented adopt the ordinance as submitted in an initiatory petition or
repeal the ordinance referred to by a referendary petition. If the Board
does not adopt or repeal the ordinance as provided above, then the
proposal shall be placed on the ballot without further action of the
Board.
b. The Current Petition Initiative
On April 26, 2016, An Accountable Miami-Dade, through Christian Ulvert,
submitted an initiative petition, including proposed ballot language, to the Clerk of
the Circuit Court. The petition contains the following ballot language:
Title: INITIATORY ORDINANCE PETITION, REVISING
CAMPAIGN FINANCE CONTRIBUTION LIMITS AND TRUST
FUND, AND BANNING CERTAIN CONTRACTOR
CONTRIBUTIONS.
Summary: Should an ordinance be enacted addressing the appearance
of ethical impropriety in county government; limiting campaign
contributions to $250 per election per candidate to candidates for
County offices; prohibiting large county contractors from making
campaign contributions; amending the election campaign financing
trust fund; repealing prior ordinances and resolutions in conflict;
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amending definition of gift; providing severability, code inclusion,
and an effective date?
Two days after the petition was submitted, the Clerk of the Circuit Court
(the “Clerk”) in a written letter dated April 28, 2016, notified Mr. Ulvert that “[t]he
petition form complies with the format determined by the Supervisor Of Elections.
Therefore, I have enclosed a copy of the approved petition form with the Clerk’s
seal affixed thereto.” Significantly, the Clerk further notified Appellees “the Clerk
approves the petition, as to form only. This approval as to form only does not
address the substance of the petition, legal sufficiency of the proposed ordinance
and/or factual accuracy of any statements herein.” (emphasis in original). The
Clerk further directed Appellees to review Sections 3.062 and 8.01 of the Miami-
Dade Home Rule Amendment and Charter (the “Charter”) as well as Section 12-23
of the Miami-Dade County Code and advised Appellees that “[i]t is the
responsibility of the petitioner to comply with all applicable laws governing the
initiative petition process.” (emphasis in original)
After approval by the Clerk, and pursuant to Section 8.01(1) of the Charter,
the subject petition was placed on the May 17, 2016 Board agenda for a public
hearing.3 It is undisputed that at the May 17, 2016 meeting, the Board did not
2 Section 3.06 of the Charter incorporates “the provisions of the election laws of
this state” into all Miami-Dade County elections held pursuant to the Charter.
3 The record shows that although the next regular Board of County Commissioners
meeting would have been on May 3, 2016, the item was scheduled on the May 17,
2016 meeting in order to comply with the publication requirements of Section
5
consider any motion on the petition and did not take any action with respect to the
petition other than allowing Appellees and other members of the public to speak on
the proposal.4
The Clerk’s April 28, 2016 letter further informed Appellees that they had
120 days from April 28, 2016 to obtain the necessary signatures.5 The
uncontroverted evidence in the record establishes that the Miami-Dade County
Elections Department informed Appellees “that ballot questions submitted by
municipalities by August 9, 2016 in final form and with all the required legal
approvals would be placed on the November General Election Ballot.”6
On August 2, 2016, Appellees filed their signed petitions with the Clerk of
the Board of County Commissioners. Pursuant to Section 8.01(3) of the Charter,
once signed petitions are submitted, the Board then has 30 days7 to “order a
canvass of the signatures thereon to determine the sufficiency of the signatures.”
The Board, however, cannot order a canvass unless done as an act in a duly
authorized and constituted meeting.8 A review of the Board’s 2016 Calendar
1.02(B) of the Charter.
4 This Court takes judicial notice of the video of the May 17, 2016 Board meeting
(http://miamidade.gov/wps/portal/Main/webcasting).
5 The 120-day period expired on August 26, 2016.
6 The Supervisor of Elections, Christina White, submitted an affidavit attesting to
this fact.
7 Pursuant to Section 8.01(3), the Board the County Commission had until
September 1, 2016 to order the canvass.
8 See Nash v. Richard, 166 So. 2d 624, 625 (Fla. 3d DCA 1964).
6
shows that the regularly scheduled Board meeting of August 2, 2016 was cancelled
because of the Board’s July 25 through August 31, 2016 recess, and that the next
regularly scheduled meeting following recess was to be held on September 7,
2016. On August 8, 2016, the Chairman of the Board circulated a call for a special
meeting of the Board on August 9, 2016 to address the petition. The August 9,
2016 special meeting, however, lacked a quorum and was not able to be convened.
On August 22, 2016, the Chairman successfully convened a special meeting for the
purpose of addressing the subject petition.
At the August 22, 2016 special meeting, the Board ordered the Supervisor of
Elections to canvass the submitted petitions on an expedited basis.9 The record
establishes that at the August 22, 2016 meeting, Appellees suggested that the
Board defer consideration of the petition’s legal sufficiency to a later point in time.10
On September 2, 2016, before the canvass was completed and before the
Board considered or determined the petition’s sufficiency, Appellees filed a First
Amended Petition for Writ of Mandamus. In their petition, Appellees asked the
trial court to compel Miami-Dade County “to order that the campaign finance
9 The record indicates that over $400,000 in taxpayer funds were expended in
expediting the canvass.
10 The Court takes judicial notice of the video of the August 22, 2016 special
Board meeting (http://miamidade.gov/wps/portal/Main/webcasting). A review of
the video of the August 22, 2016 special meeting of the Board shows that counsel
for Appellees also acknowledged that were legal questions about the sufficiency of
the petition but that they could be considered at a later date.
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reform initiative ordinance petition be placed on the November 8, 2016 ballot or
adopt the proposed ordinance if the Supervisor of Elections determines that the
petition contains a sufficient number of signatures pursuant to the Home Rule
Amendment and the Miami-Dade County Home Rule Charter.” On September 2,
2016, Appellees also filed a Motion to Expedite Consideration of Amended
Petition for Writ of Mandamus.
On September 6, 2016, the trial court sua sponte requested that all parties
appear for a hearing on September 8, 2016 at 10 a.m. The parties were expressly
advised by the trial court’s judicial assistant that the hearing would only be on the
motion to expedite.11 At no time prior to the September 8 hearing did the trial
court issue an alternative writ in mandamus, provide notice that it would be
considering the merits of the petition, or give the County the opportunity to show
cause why such mandamus should not be granted.
Later on September 6, 2016, the Supervisor of Elections certified to the
Board that the petition had been fully canvassed and contained 55,835 valid
signatures and 72,189 invalid signatures. The Supervisor’s certification was
11 In an email to all the parties, the trial court’s judicial assistant advised the
parties that “[t]he judge will be hearing the Motion that was filed. The Court id
[sic] also requesting the response by the end of today.” In response, the attorney
for the County made the following inquiry: “[t]o be clear, that is the motion to
expedite? That is the only motion pending.” In response, again to the all the
parties, the trial court’s judicial assistant responded “[c]orrect the motion to
expedite.”
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subsequently added on to the agenda for the Board’s meeting scheduled for the
following day, September 7, 2016.
At the September 7 meeting, the Board discussed both the status of the
canvass and also the sufficiency of the petition.12 At that meeting, the Board
determined that the petition was deficient as to form and that the petition had
therefore failed.13 The record establishes that this was the first time that the Board
made any determination regarding the sufficiency of the petition. Within an hour
of that vote, Miami-Dade County filed a Consolidated Motion to Dismiss and
Response to Motion to Expedite in the trial court below.
On September 8, 2016, the trial court proceeded with the scheduled hearing
on the motion to expedite. Rather than address the motion to expedite – which was
the only pending motion and which the trial court itself had advised the parties was
the subject of the hearing—the trial court immediately proceeded to entertain
argument on the merits of the petition itself. Our review of the video of the
hearing, with which Appellees supplemented the record, confirms that the trial
court began the hearing questioning the County on the merits of the petition and
12 The Court takes judicial notice of the video of the September 7, 2016 Board
meeting (http://miamidade.gov/wps/portal/Main/webcasting).
13 See Section 8.01(3) (“If. . . the petition is deficient as to form or compliance
with this Section, the Board shall notify the person filing the petition that the
petition is insufficient and has failed.). Additionally, the County Attorney’s
Office advised the Board at the September 7, 2016 meeting that the ballot language
was misleading, that the ballot title did not comply with the essential requirements
of Florida law, and that the underlying ordinance was unconstitutional.
9
whether the initiative petition was sufficient. The Court at no time addressed the
motion to expedite, which was the only matter it had noticed for hearing.
On Friday, September 9, 2016, the trial court issued an Order Granting
Appellee’s First Amended Petition for Writ of Mandamus. The trial court found
that Mandamus was warranted “[b]ecause the initiative petition form was approved
by the Clerk pursuant to section 8.01(1), and later approved by the Board of county
commissioners [sic] on May 17, 2016, [and as such] the named officials
consequently had a ministerial duty to either adopt the initiative petition or place it
on November’s ballot. The Boards [sic] action in ordering the canvass of the
signatures under County Charter 8.01(3) is merely ministerial, as is placement on
the ballot if the Board does not adopt the ordinance.”
Following issuance of the written order, the County on the same day filed an
emergency notice of appeal and a motion for expedited review. The County’s
motion correctly noted that, pursuant to Florida Rule of Appellate Procedure
9.310(b)(2), the County’s Notice of Appeal automatically stayed the trial court’s
order. This Court granted the motion for expedited appeal.14 On September 12,
2016, Appellees filed an Emergency Motion for Review and Vacation of
Automatic Stay. This Court denied that motion on September 15, 2016.
14 The initial brief was filed on Monday, September 12, 2016. The answer brief
was filed on Tuesday, September 13, 2016 and the reply brief on Wednesday,
September 14, 2016.
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II. ANALYSIS
a. The Entry of a Mandamus is Warranted only to Compel a Public
Official to Discharge a Ministerial Duty
“Mandamus is a recognized remedy to require a public official, who is
clothed with the authority, to discharge his duty.” Dante v. Ryan, 979 So. 2d 1122,
1123 (Fla. 3d DCA 2008) (quoting Alexander v. City of Coral Gables, 745 So. 2d
1004, 1005 (Fla. 3d DCA 1999)); see also Browning v. Young, 993 So. 2d 64, 65
(Fla. 1st DCA 2008) (stating that mandamus is a civil remedy to compel a public
official to discharge a ministerial duty); Eichelberger v. Brueckheimer, 613 So. 2d
1372, 1373 (Fla. 2d DCA 1993) (“Mandamus is used to compel an official to
perform lawful duties.”). “For the issuance of a writ of mandamus, the petitioner
must demonstrate a clear legal right to the performance of a ministerial duty by the
respondent and that no other adequate remedy exists.” Morse Diesel Int’l v. 2000
Island Boulevard, Inc., 698 So. 2d 309, 312 (Fla. 3d DCA 1997). “A duty or act is
defined as ministerial when there is no room for the exercise of discretion, and the
performance being required is directed by law.” Shea v. Cochran, 680 So. 2d 628,
629 (Fla. 4th DCA 1996) (quoting Town of Manalapan v. Rechler, 674 So. 2d 789,
790 (Fla. 4th DCA 1996)).
Mandamus is available only to “enforce an established legal right . . . not to
establish that right.” Morse Diesel Int’l , 698 So. 2d at 312; accord Fla. League of
Cities v. Smith, 607 So. 2d 397, 401 (Fla. 1992) (“Mandamus may not be used to
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establish the existence of such a right, but only to enforce a right already clearly
and certainly established in the law.”).
Here, the trial court granted the Appellees’ first amended petition for writ of
mandamus based upon its conclusion that the Appellees had a clear legal right to
place the proposed ordinance on the November 8, 2016 ballot. Specifically, the
trial court concluded:
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.
The relevant portion of Section 8.01 of the Charter provides:
3. The signed petition shall be filed with the Board which shall
within 30 days order a canvass of the signatures thereon to determine
the sufficiency of the signatures. If the number of signatures is
insufficient or the petition is deficient as to form or compliance with
this Section, the Board shall notify the person filing the petition that
the petition is insufficient and has failed.
4. The Board may within 30 days after the date a sufficient petition is
presented adopt the ordinance as submitted in an initiatory petition or
repeal the ordinance referred to by a referendary petition. If the Board
does not adopt or repeal the ordinance as provided above, then the
proposal shall be placed on the ballot without further action of the
Board.
As these provisions make clear, the Board’s duty to either adopt the petition
as an ordinance or place the proposal on the ballot only arises if “a sufficient
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petition is presented.” However, if the “petition is deficient as to form or
compliance with this Section, the Board shall notify the person filing the petition
that the petition is insufficient and has failed.”
The trial court’s conclusion, therefore, that “the named officials” had a
ministerial duty to either adopt the initiative petition or place it on the November
ballot was incorrect because it was based upon an erroneous finding—that the
Board “approved” the initiative petition on May 17, 2016. There is no evidence in
the record that the Board “approved” the petition at the May 17 meeting, or that the
Board approved the petition at any time.
In fact, at the August 22 special set Board meeting, Appellees suggested that
the Board defer consideration of the sufficiency of the petition to a later date. The
first time the Board considered the petition’s sufficiency was at its September 7,
2016 meeting. Contrary to the trial court’s finding in its order, the Board did not
approve the petition but instead determined that the petition was deficient and had
failed.
The Appellees in their answer brief properly concede that the Board did not
“approve the petition as to form” at its May 17 meeting. The Appellees, however,
argue that “[w]hile that [finding of the court] is not accurate, there is nothing in the
trial court’s decision that suggests that the court in any way relied on that fact in
reaching its decision.” We find Appellees’ argument without merit, as a review of
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the trial court’s order shows that the trial court’s ruling was clearly based on this
incorrect finding.
Section 8.01(4) of the Charter only applies to a “sufficient petition.” The
trial court’s order is premised on the erroneous finding that the Board approved the
petition at its May 17, 2016 meeting and that Section 8.01(4) therefore applied. To
the contrary, pursuant to Section 8.01(3), the Board’s determination at its
September 7 meeting that the petition was deficient meant that the petition failed.
The Board, therefore, was not required—nor was it even authorized—to take
further action regarding the petition, whether by adopting it or by permitting it to
be placed on the ballot.15
Because no ministerial duty existed for the Board to place the petition on the
ballot “without further action,” Appellees failed to establish a clear legal right to
have the petition placed on the ballot. The trial court therefore erred in granting
the amended petition for writ of mandamus and entering an order requiring the
placement of this petition on the November 8, 2016 ballot. Accordingly, we
reverse the trial court’s order and vacate the writ of mandamus compelling Miami-
Dade County to add the initiative petition submitted by Appellees to the November
8, 2016 General Election ballot.
15 Appellees are not without a remedy if they believe the Board’s determination
was incorrect. For example, Appellees could file a separate suit for declaratory
relief challenging that determination. We express no opinion regarding the merits
of such a suit.
14
b. Trial Court’s Failure to Comply with Florida Rule of Civil Procedure
1.630
In addition to the reasons set forth above, and a separate basis for reversal,
we find that the trial court failed to comply with the requirements of Florida Rule
of Civil Procedure 1.630. Florida Rule of Civil Procedure 1.630 sets forth the
procedure for a trial court’s issuance of extraordinary writs, including a writ of
mandamus. Pursuant to Rule 1.630(d)(2), “[i]f the complaint shows a prima facie
case for relief, the court shall issue . . . an alternative writ in mandamus.” An
alternative writ in mandamus is essentially an order to show cause. See Gilliam v.
State, 996 So. 2d 956, 958 (Fla. 2d DCA 2008) (stating that if a petition for writ of
mandamus states a prima facie case for relief, the trial court must issue an
alternative writ, “which ‘is essentially an order to show cause why the requested
relief should not be granted.’” (quoting Bostic v. State, 875 So. 2d 785, 786 (Fla.
2d DCA 2004))); Conner v. Mid-Fla. Growers, Inc., 541 So. 2d 1252, 1256 (Fla.
2d DCA 1989) (“Upon receipt of a facially sufficient petition for writ of
mandamus, a court having jurisdiction to consider such a petition should first issue
an alternative writ, which is essentially an order to show cause why the requested
relief should not be granted.”). “If the petition and answer to the alternative writ
raise disputed factual issues, the trial court must resolve these issues upon evidence
submitted by the parties.” See Radford v. Brock, 914 So. 2d 1066, 1068 (Fla. 2d
DCA 2005).
15
Additionally, Rule 1.630(e) provides that a defendant “shall respond to writ
as provided in rule 1.140.”16 As such, a respondent must be given a reasonable
time within which to file a return to the alternative writ. Conner, 541 So. 2d at
1256 (“The respondent has the right to plead to the alternative writ and will be
prejudiced by the failure to allow a reasonable time within which to do so.”);
Southern Realty & Utils. Corp. v. State, 181 So. 2d 552, 554 (Fla. 3d DCA 1966)
(“The law requires that a reasonable time be given to file a return to an alternative
writ of mandamus . . . .”).
In its September 9, 2016 order, the trial court acknowledged that “Florida
Rule of Civil Procedure 1.630 provides that ‘If the complaint shows a prima facie
case for relief, the court shall issue . . . an alternative writ in mandamus.’ Fla. R.
Civ. P. 1.630(d)(2); see also Chandler v. City of Greenacres, 140 So. 3d 1080,
1083 (Fla. 4th DCA 2014). Once the alternative writ in mandamus is issued, the
defendant shall respond to the writ as provided in Rule 1.140. Fla. R. Civ. P.
1.630(e).” Despite acknowledging the mandatory procedural requirements of Rule
1.630, the trial court failed to follow them, and rather than making a preliminary
determination as to Appellees’ prima facie case for relief and issuing an alternative
16 Rule 1.140(a)(1), Fla. R. Civ. P., provides in pertinent part that: “[u]nless a
different time is prescribed in a statute of Florida, a defendant shall serve an
answer within 20 days after service of original process and the initial pleading on
the defendant, or not later than the date fixed in a notice by publication.”
16
writ in mandamus, the trial court simply proceeded to a decision on the merits of
the petition.
In Conner v. Mid-Fla. Growers, Inc., 541 So. 2d 1252, 1256 (Fla. 2d DCA
1989), our sister court held that the trial court’s failure to issue an alternative writ
requiring the appellant, the Department of Agriculture and Consumer Services, to
respond to the petition warranted reversal. In Conner, as in this case, “instead of
issuing an alternative writ and requiring the department to respond to the growers’
petition, the court proceeded directly to hear the merits of the petition and to rule
forthwith.” Id. at 1256. The appellees in Conner argued that despite the lack of
strict compliance with Rule 1.630, “the procedure employed by the trial court was
proper and fair” and that “[t]he function of the alternative writ . . . ‘is simply to
advise the recipient that the court has reviewed the petition and found it to state a
preliminary basis for relief.’” Id. at 1256. The Second District Court of Appeal
disagreed and, in reversing the trial court’s writ of mandamus, stated: “[w]e hold
only that once mandamus was contemplated . . . the rules of civil procedure require
proper notice and an adequate opportunity to respond.” Id. at 1257.
As in Conner, the trial court here failed to issue an alternative writ and
failed to require the County to show cause why the writ should not be issued.
Moreover, if disputed factual issues are raised by the petition and the answer to the
petition, “the trial court must resolve these issues upon evidence submitted by the
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parties.” Radford, 914 So. 2d at 1068. Having failed to provide the County with the
opportunity to answer the petition, the trial court also failed to determine if an
evidentiary hearing was required. Accordingly, because the trial court failed to
comply with Rule 1.630, the writ of mandamus is reversed on this ground as well.
See Conner, 541 So. 2d at 1257; Southern Realty & Utils., Corp., 181 So. 2d at
554 (finding reversible error where appellants not given a reasonable time in which
to prepare its defenses to writ of mandamus and file its return).
c. Trial Court’s Violation of the County’s Right to Due Process
Finally, and in addition to the reasons set forth above, we find that reversal
of the writ is required based on the trial court’s violation of the County’s due
process rights. As discussed previously, the trial court’s September 8 hearing was
noticed only for Appellees’ motion to expedite, and the record establishes that on
the day of the hearing, the only response filed by the County was as to Appellees’
motion to expedite.17 A review of the video of the September 8 hearing shows that
the trial court immediately entertained argument on the merits of the petition, and
that the trial court began the hearing not by addressing the motion to expedite—the
only matter which the court had set for hearing—but rather by questioning the
County on the merits of the petition and whether the initiative petition was
17Although the County had filed a motion to dismiss the amended petition for
mandamus late in the day on September 7, that motion was not set for hearing on
September 8.
18
sufficient. Notwithstanding the lack of notice, the trial court granted relief on the
merits of the Appellees’ petition.
It is well established that “the granting of relief, which is not sought by the
notice of hearing or which expands the scope of a hearing and decides matters not
noticed for hearing, violates due process.” Celebrity Cruises, Inc. v. Fernandes,
149 So. 3d 744, 750 (Fla. 3d DCA 2014) (quoting Connell v. Capital City Partners,
LLC, 932 So. 2d 442, 444 (Fla. 3d DCA 2006)). Accord Mizrahi v. Mizrahi, 867
So. 2d 1211, 1213 (Fla. 3d DCA 2004) (“Due process protections prevent a trial
court from deciding matters not noticed for hearing and not the subject of
appropriate pleadings.”); Epic Metals Corp. v. Samari Lake E. Condo. Ass'n, Inc.,
547 So. 2d 198, 199 (Fla. 3d DCA 1989) (“A trial court violates a litigant's due
process rights when it expands the scope of a hearing to address and determine
matters not noticed for hearing.”).
Because it is undisputed that the September 8 hearing went well beyond the
scope of the matter that the trial court had noticed for hearing, we reverse the writ
on this ground as well, as the trial court’s actions in reaching the merits of the case
violated the County’s due process rights.
III. CONCLUSION
We reverse the trial court’s order on three independent grounds. First,
because the trial court’s conclusion that the Appellees had a clear legal right to
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compel the Board to place the proposed ordinance on the ballot was based upon the
erroneous finding that the Board “approved” the initiative petition on May 17,
2016, we reverse the trial court’s order granting the Appellees’ first amended
petition for writ of mandamus and vacate the writ of mandamus.
Second, the trial court failed to follow the procedural safeguards required by
Rule 1.630 in failing to issue an alternative writ in mandamus, and we therefore
reverse the trial court’s order on that ground as well. Third, we reverse the trial
court’s order because by expanding the scope of the September 8 hearing to
address and determine matters not noticed for hearing, specifically the merits of
Appellees’ amended petition for writ of mandamus, the trial court violated the
County’s due process rights.18
Accordingly, we reverse the trial court’s September 9, 2016 order, and
vacate the writ of mandamus.
This opinion shall take effect immediately, notwithstanding the filing of any
motion for rehearing.
SUAREZ, J., concurs.
18 Because we reverse on these grounds, we need not reach any other issues raised
in Appellants’ brief.
20
EMAS, J., specially concurring.
I concur in the result reached by the majority, but conclude that it is
unnecessary to reach the analysis in parts II b. and II c., and those corresponding
portions of part III. I join in the remainder of the majority opinion.
21