Konish: Judge Dempsey rebukes Gainesville City Commission and their attorneys
Letter to the editor
On Friday, September 29, 2023, at 11:03 a.m., Judge Angela Dempsey entered an “Omnibus Order” (emphasis added) in favor of the State of Florida.
The Court found that:
- The City of Gainesville failed to sue the proper parties.
- The City of Gainesville lacked standing to sue any party.
- The Defendants were immune from the suit.
- Each of the eight (8) counts of the City complaint was legally insufficient.
The Court also determined in a 29-page opinion that the City knowingly and repeatedly misrepresented key facts and the law.
There were myriad defenses to the complaint, any one of which operated to bar the filing of the suit – much less any relief sought.
Judge Dempsey’s ruling was timely, beautifully drafted, and comprehensive. Key dicta in the opinion shed light on the path to implementation of Chapter 2023-348 (Article VII of the Charter). An appeal or the parallel federal lawsuit has been rendered even more ill-advised.
The new lawsuit in the same Tallahassee-based 2nd Judicial Circuit Court is incredible but not surprising in the wake of Judge Dempsey’s ruling, which can be found here.
I. The City of Gainesville Failed to Sue the Proper Parties:
Page 3: “Each Defendant Is an Improper Party”. Page 4: “Plaintiff does not allege, much less demonstrate, that the Defendants meet any of the Francati elements.” “’The proper defendant in a lawsuit challenging a statute’s constitutionality is the state official designated to enforce the statute.’… Neither the attorney General, the Governor, nor the Secretary enforce the Challenged Law. Rather, the Authority does.” “Thus, none are proper parties to this action.”
Page 5: attorney General – “The attorney General’s discretionary authority to intervene is a general executive power and does not constitute a sufficient connection to make her a proper defendant.”
Page 5: Governor – “’It is absurd to conclude that the Governor’s general executive power under the Florida Constitution is sufficient to make him a proper defendant whenever a party seeks a declaration regarding the constitutionality of state law.’”
Page 7: “…Plaintiff does not cite a single authority for its claim that the Governor ‘manages’ or supervises the Authority.” “… the Governor is plainly not the ‘enforcing authority.’” “The Governor does not regulate or oversee municipal utilities. Plaintiffs repeatedly acknowledge this point… (‘The Florida Constitution… does not provide any authority for the State to have the Governor run a City Department.’)…”
Page 8: “Otherwise, ‘any state statute could be challenged simply by naming the governor as a Defendant.’” “Finally, the Governor does not have ‘an actual, cognizable interest in the challenged action.’” “…a ‘public official’s ‘[d]isagreement with a constitutional or statutory duty, or the means by which it is to be carried out, does not create a justiciable controversy or provide an occasion to give an advisory judicial opinion.’”
Page 9: Secretary Byrd – “Plaintiff has made the Secretary of State a party solely to expunge the challenged law from the state’s records…” Page 10: “Nor does the Secretary have any antagonistic interest in what happens with any city’s administration of utilities.” Page 11: “…Plaintiff has not cited any case outside of the context of an appropriations act where a Secretary of State has been ordered to expunge something, let alone an entire special law.” Comment: Even the Queens and Kings of England under their and our common law would not receive such an accommodation.
II. Plaintiff Lacks Standing as to Each Defendant
Page 11: “To challenge the constitutionality of a statute in Florida’s courts, a plaintiff must show that his constitutional rights have been infringed…” “'[A] litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties.’” Page 12: “As a municipality, Plaintiff must also show its claims are not barred by the Public Official Standing Doctrine.” “Although the law took effect on July 1, 2023, the challenged transfer of power from Plaintiff to the Authority has not happened because the Authority’s members have not yet been appointed”. “As a matter of law, nothing has changed, and nothing can or will change unless and until the Authority, once established, makes a change.” Comment: On page 13, the Court finds that the City ignored the relevant case law on this point. (This may relate to when proper residency must be established.) Page 14: “Plaintiff states that the controversy (once it arises) will be about ‘the legal relationship between the Plaintiff and the members’ appointed to the Authority.” “Plaintiff insists that the legislature ‘go back to the drawing board’ because it does not like the Challenged Law. However, Defendants have nothing to do with the structure of municipal government or utilities generally. Plaintiff does not allege otherwise.” “Plaintiff’s constitutional claims are also barred by the Public Official Standing Doctrine as to each Defendant… public officials may not challenge the constitutionality of statutes affecting their official duties.” Page 15: “… the doctrine applies to municipalities.” “The Court also finds that the public funds exception… does not apply.” “The Challenged Law does not require Plaintiff to expend funds. But even if some expenditures occur due to the Challenged Law, they are simply ‘the ordinary costs…of doing business’ or the ‘costs of governance’, which do not fit within the public funds exception.” Comment: The expenditures caused so far are attorneys’ fees for lawsuits devoid of merit.
III. Immunity From Suit
Page 17: “Accordingly, Plaintiff’s statutory claims are barred by sovereign immunity. Indeed, Plaintiff has not refuted this argument.” “Plaintiff’s complaint… did not plead facts demonstrating a waiver or exception.”
IV. Plaintiff Failed to State a Claim as to Each Count
Page 18: “Plaintiff alleges that the Challenged Law is unconstitutionally vague”…” “First, use of the term ‘municipal unit’ does not make the Challenged Law vague as the term is not used in the law”. Page 19: “When there is a conflict between a general law and a special charter provision, ‘it is well settled that the special charter provisions will prevail.’” “The Challenged Law does not impair the contract for sale of the TRS [Trunked Radio System] because no such contract exists.” Page 20: “The Challenged Law also does not impair the Bond Resolution.” Page 21: “Having included in the Bond Resolution a provision that accounts for a potential change in governance in the utilities system that is substantially similar to the Challenged Law, Plaintiff cannot demonstrate an impairment of that contract.” Page 22: “[Florida Statute §166.021] requires a municipality seeking to amend the charter to engage in the referendum process, not the Legislature. The undisputed summary judgment evidence confirms Plaintiff’s officials are aware that a referendum was not required.” Page 26: “…the notice does not suffer from a constitutional defect.” Page 27: “Here, Plaintiff has not cited any constitutional provision that expressly or impliedly states that the Governor cannot appoint the members of the Authority. To the contrary, the Florida Supreme Court has found that the Legislature has the power to grant such authority. The ‘Legislature has plenary power over municipalities except as restrained by the Constitution.’” Page 28: “Because the OUC [Orlando Utilities Commission] was ‘purely a creation of the Florida Legislature’ and was ‘endowed with substantial autonomy to operate independently from the city government[,]’ it was considered a ‘distinct legal entity’ even though it was designated as part of the City’s government.” Page 29: “The Challenged Law does not create a legislative body [that must be elected].” Comment: Rather than Chapter 2023-348 being found to be poorly drafted, the City Commission’s complaint was found to be poorly drafted, as are Commissioner Bryan Eastman’s embarrassing public utterances.
Jim Konish, Gainesville
The opinions expressed by letter or opinion writers are their own and do not necessarily represent the views of AlachuaChronicle.com. Letters may be submitted to info@alachuachronicle.com and are published at the discretion of the editor.
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