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Submittal-Berger Singerman Memorandum of Law
r4P-wqr'S- °zoo 3 1 we deliverre5tive and effccw,T business soltAtiOnSini counwi BERGER SINGERMAIN4- attorneys at law Boca Raton Fort Lauderdale Miami Tallahassee Mitchell W. Berger (954)712-5140 mberger(i4bergersingerman.com February 13, 2013 VIA HAND DELIVERY AND EMAIL ATTACHMENT Chairman Marc Sarnoff City of Miami City Hall 3500 Pan American Drive Miami, Florida 33133 Re: Memorandum of Law regarding Mayor Tomas Regalado's Request for Paid Legal Defense Dear Chairman: Berger Singerman LLP was asked to assist the City of Miami by providing counsel regarding Mayor Tomas Regalado's request for paid legal defense with respect to Michelle Spence -Jones v. State Attorney Katherine Fernandez Rundle, et al., Case No. 12-cv-24253-XXXX, United States District Court for the Southern District of Florida. Please find the attached Memorandum of Law prepared for the City. I will be at the City Commission meeting on February 14, 2013, to discuss the City's options with regard to the Mayor's request. I look forward to speaking with you. If you have any questions regarding this Memorandum, please do not hesitate to contact me on my mobile phone, (954) 240-1786. Thank you for the opportunity to assist the City in this way. cc: City Commission City Attorney Miami Herald 4811552-1 Sincerely, Beger1 Singe`i LLP Mitchell W. Berger 350 East Las Olas Boulevard Suite 1000 Fort Lauderdale, Florida 33301 Telephone 954-525,9900 Facsimile 951.5232872 MASTER CASE LAW BINDER RE: MEMORANDUM OF LAW RE: OPTIONS OF THE CITY COMMISSION WITH RESPECT TO REQUEST OF MAYOR TOMAS REGALADO FOR LEGAL DEFENSE PAID FOR BY THE CITY NO. DESCRIPTION DATE A. Memorandum of Law re: Options of the City Commission with Respect to Request of Mayor Tomas Regalado for Legal Defense Paid for by the City CITED CASE LAW/AUTHORITY 02/13/2013 1. City of Fort Walton Beach v. Grant, 544 So.2d 230, 237 (Fla. 1s1 DCA1989) 2. City of Winter Haven v. A. M. Klemm & Son, 132 Fla. 334, 181 So. 153 (1938) 3. Christiansburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412, 416-17 (1978) 4. Ellison v. Reid, 397 So.2d 352 (Fla. 1st DCA 1981) 5. Lomelo v. City of Sunrise. 423 So.2d 974 (Fla. 4th DCA 1982) 6. Miccosukee Tribe of Indians of Florida v. South Florida Water Management Dist, 48 So. 3d 811, 822 (Fla. 2010) 7. Miller v. Carbonelli, 80 So.2d 909 (F1a.1955) 8. Nuzum v. Valdes, 407 So.2d 277 (Fla. 3d DCA 1981) 9. Peck v. Spencer, 26 Fla. 23, 7 So. 642 (1890) 10. State v. Division of Bond Finance, 495 So. 2d 183. 184 (Fla. 1986) 11. State v. Miami Beach Redevelopment Agency, 392 So. 2d 875, 885 (Fla. 1980), citing, Bannon v. Port of Palm Beach District, 246 So.2d 737, 741 (F1a.1971) 12. Thornber v. City of Ft. Walton Beach, 568 So. 2d 914, 919 n.6 (Fla. 1990) 13. Williams v. City of Miami, 42 So.2d 582 (F1a.1949)1 4. 18 U.S.C. § 1962 15. 42 U.S.C. § 1983 16. Fla. Stat. §111.07 17. Fla. Stat. §166.021 18. F1a. Stat. §772.103 1 19. Florida Constitution, Article VI , Section 10 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon BERGER SINGERMAN attorneys at taw MEMORANDUM OF LAW TO: City of Miami City Commission FROM: Mitchell W. Berger, Esq. Paul S. Figg, Esq. DATE: February 12, 2013 RE: Options of the City Commission with respect to request of Mayor Tomas Regalado for legal defense paid for by the City Questions Presented: 1. May the City pay for the legal defense of the Mayor related to the civil lawsuit filed against him? 2. May the City pay for the Mayor's legal defense, as requested, on an ongoing basis? Brief Answers: 1. Yes, given the allegations in the lawsuit concerning the capacity in which the Mayor acted. 2. Yes, but the City Commission should first consider whether such course of action serves a public purpose. Relevant Facts: On December 3, 2012, a civil lawsuit (Michelle Spence -Jones v. State Attorney Katherine Fernandez Rundle, et al., Case No. 12-cv-24253-XXXX, United States District Court for the Southern District of Florida) was filed and Mayor Tomas Regalado (the "Mayor") was named as a defendant. The lawsuit alleges counts against the Mayor for Civil Rights Conspiracy and Retaliatory Inducement to Prosecute pursuant to 42 U.S.C. §1983, Civil RICO pursuant to 18 U.S.C. §1962, Florida RICO pursuant to §772.103, Florida Statutes, and Florida Common Law/Intentional Infliction of Emotional Distress. See Complaint. With respect to all counts,' the Plaintiff alleges: "Defendant Tomas Regalado is the Mayor of the City of Miami, acting in the capacity of agent, servant, and employee of the City and within the scope of his employment as such. He is being sued in his personal capacity." See 1123, Complaint. In addition, with respect to each count alleged against the Mayor pursuant to 42 U.S.C. §1983, the Plaintiff alleges Each count incorporates all prior allegations. The counts are alleged subsequent to paragraph 23. 4S02426-11 Submitted into the public record in connection with items Di.3 on 02-14-13 that the Mayor "acted under color of law." See, e.g., '1620, Complaint. It should also be noted that with respect to each count alleged against the Mayor under 42 U.S.C. §1983, it is also alleged that the Mayor acted "with knowing, willful, wanton, grossly reckless, unlawful, unreasonable, unconscionable, and flagrant disregard of Plaintiffs rights, privileges, welfare, and well-being..." See, e.g., ¶9[623, Complaint. The Mayor has requested that the City pay for his legal defense in the lawsuit on an ongoing basis. Attachments: 1. Complaint filed in the matter of Michelle Spence -Jones v. State Attorney Katherine Fernandez Rundle, et al., Case No, 12-cv-24253-XXXX; 2. Resolutions2 a. Alternate A b. Alternate B - Sections 3-7 of Alternate B are optional, and the City Commission may elect to include, not include them or include others. Executive Summary: The City may pay for the Mayor's legal defense pursuant to Section 111.07, Florida Statutes. In fact, Section 111.07 requires the City to reimburse him for reasonable attorneys' fees and costs incurred in his legal defense, if: • the alleged injuries are the result of any act or omission of action; o arising out of and in the scope of the Mayor's employment or function; or o of the Mayor under color of law; and • provided that the Mayor did not act in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. Furthermore, in addition to the requirements of Section 111.07, at common law the Mayor is entitled to be reimbursed or indemnified by the City for his defense in litigation arising 2 On February 5, 2012, we were asked to provide a resolution regarding the Mayor's request before the agenda deadline. In providing that resolution, we made clear that it had not been finally reviewed and was preliminary. The resolution provided at that time envisioned incorporating the findings of fact and conclusions of law of a Memorandum of Law that would be provided by Berger Singerman LLP. That preliminary resolution was incorrect. In conjunction with providing this Memorandum of Law to the City, we are providing alternate resolutions that may be used by the City, depending upon the City Commission's ultimate decision on the Mayor's request. THE PURPOSE OF THIS MEMORANDUM OF LAW IS NOT TO MAKE FINDINGS OF FACT AND CONCLUSIONS OF LAW FOR INCORPORATION INTO ANY CITY RESOLUTION. 2 4802426-11 Submitted into the public record in connection with items 013 on 02-14-13 from the performance of his official duties while, so long as such reimbursement serves a public purpose. The Mayor has requested payment for such legal defense on an ongoing basis. The City is under no obligation to pay for the Mayor's defense on an ongoing basis, however. It is a policy decision, and the City may simply deny the request without explanation. It should be made clear that the City Commission's options are not limited to simply approving or denying the Mayor's request. There are many options in between that the City Commission can propose to the Mayor. For example, the City could: • Offer another attorney of the City's choosing that it is willing to pay on an ongoing basis; • Offer to guaranty payment of the Mayor's legal defense in the event that the Mayor cannot pay if he becomes eligible for reimbursement pursuant to law based upon the outcome of the litigation; • Offer to pay the attorney of the Mayor's choosing on an ongoing basis, beginning at a specific point in the litigation, provided that certain positions are taken or facts are established. These positions and/or facts might be established through the filing of an answer and affirmative defenses by the Mayor, the filing of any counterclaims by the Mayor, the filing of all responsive pleadings and counterclaims in the case, and/or the conduct of specific depositions; • Seek offers from attorneys willing to take on the Mayor's legal defense with the understanding that the City will pay the Mayor's attorneys' fees and costs if the court finds in his favor, and offer those willing to do so to the Mayor; or • Seek offers from attorneys willing to take on the Mayor's legal defense under a flat fee arrangement, which would be paid by the City, and offer those willing to do so to the Mayor; or • Seek offers from attorneys willing to take on the Mayor's legal defense pro bono, and offer those willing to do so to the Mayor. The foregoing list of options is not exhaustive. The point of these examples is that the City Commission's choice is not an "either/or" choice. 4802426-11 Submitted into the public record in connection with items D1.3 on 02-14-13 Todd B. Hannon If the City elects to pay for such defense on an ongoing basis, it should consider taking the following steps:3 reserving any and all rights to seek reimbursement from the Mayor if the Plaintiff prevails, at any time in the litigation, and the court makes any determination that the Mayor: o acted in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property; or o acted in a manner that would make payment for his legal defense in the lawsuit in contravention of public policy; and • reserving any and all rights to seek reimbursement from the Mayor if, at any time in the litigation, the court makes any determination that the Mayor acted outside the scope of his or her employment or function; • reserving any and all rights to decide in the future not to pay for his legal defense on an ongoing basis, for any reason, including or by example limited by certain conditions, such as these suggested below; • reserving any and all rights not to pay any invoice for attorneysfees and costs, based on developments in the ongoing litigation • reserving any and all rights not to pay any invoice for attorneys' fees and costs, based on its determination that the invoiced attorneys' fees and costs are not reasonable because of the rates charged, time expended, work performed or any other reason bearing upon the reasonableness ofattorneys' fees and costs. The City Commission should, consistent with best practices, clearly understand that its decision to pay for the legal defense of the Mayor on an ongoing basis in the specific circumstances of this case must serve a public purpose, and that the City Commission makes specific public purpose findings based thereon. It is further recommended that the City Commission take such other steps necessary to ensure that public monies are not spent unnecessarily. 3 We have not researched any particular requirements or prohibitions on the City's ability to include any of these conditions in any pledge to pay for the Mayor's legal defense on an ongoing basis that may be found in the City's Charter. Code of Ordinances or in general law. 4 4802426-11 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Analysis: Section 111.07, Florida Statutes, both authorizes and requires a municipality to pay for the legal defense of its officers, subject to certain conditions set forth below. The Mayor has requested paid legal defense on an ongoing basis and, if the City Commission approves payment in such manner, it appears that the Mayor's engagement of his attorney will be made in reliance on the City's actions with respect to his request. Based on this reliance, the City will be found to have entered into a contractual or quasi -contractual relationship with respect to the Mayor's legal defense. In other words, the City's decision, however conditioned, will constitute a pledge to pay for his attorneys' fees and costs on an ongoing bases that is enforceable. As a result of the potential obligation of the City to pay for the Mayor's legal defense by agreeing to pay on an ongoing basis, the City's decision with respect to the Mayor's request is subject to Article VII, Section 10 of the Florida Constitution. City of Winter Haven v. A. M. Klemm & Son, 132 Fla. 334, 181 So. 153 (1938). Article VII, Section 10 prohibits government entities from pledging their credit to "any corporation, association, partnership or person..." In this circumstance, pledging of credit means the imposition of some new financial liability upon the City which in effect results in the creation of a City debt for the benefit of a person. Miccosukee Tribe of Indians of Florida v. South Florida Water Management Dist., 48 So. 3d 811, 822 (Fla. 2010). The purpose of Article VII, Section 10 is to "protect public funds and resources from being exploited in assisting or promoting private ventures when the public would be at most only incidentally benefited." State v. Miami Beach Redevelopment Agency, 397 So. 2d 875, 885 (Fla. 1980), citing Bannon v. Port of Palm Beach District, 246 So.2d 737, 741 (F1a.1971). The basic test for determining whether an expenditure of public funds violates state constitutional provision prohibiting using state's taxing power or credit to aid a private entity or person is whether such expenditure is made to accomplish a public purpose. Miccosukee Tribe of Indians of Florida, 48 So. 3d at 822. It is immaterial that the primary beneficiary of the pledge be a private party, if the public interest, even though indirect, is present and sufficiently strong. Id. at 823. Section 111.07 was based upon the common law rule providing for the paid legal defense of public officials acting in their official capacity, but that rule required that such expenditure be for a public purpose. The Legislature, in adopting Section 111.07 and providing the conditions for paid legal defense, implicitly determined that those conditions serve a public purpose. Even 5 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 4802426-11 though the Legislature's implicit public purpose determination in Section 111.07 might be sufficient to sustain a challenge to the constitutionality of the City's decision to pay for the Mayor's legal defense on an ongoing basis, there is no judicial precedent scrutinizing Section 111.07 under Article VII, Section 10. The City's reliance upon Section 111.07 does not necessarily satisfy its independent obligations to spend public money for a public purpose under Article VII, Section 10. §166.021(3)(b), Fla. Stat. As a result, the analysis of the Mayor's request begins but does not end with Section 111.07. The best practice, when confronted by such lack of precedent, is to make public purpose findings independently. The City's findings are a legislative act of the City Commission. When the City Commission makes legislative findings of fact with regard to public purpose, these findings of fact are presumed correct and will be upheld unless clearly erroneous. State v. Division of Bond Finance, 495 So. 2d 183, 184 (Fla. 1986). Section 111.07, Florida Statutes, provides in pertinent part: Any agency of the state, or any county, municipality, or political subdivision of the state, is authorized to provide an attorney to defend any civil action arising from a complaint for damages or injury suffered as a result of any act or omission of action of any of its officers, employees, or agents for an act or omission arising out of and in the scope of his or her employment or function, unless, in the case of a tort action, the officer, employee, or agent acted in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. Defense of such civil action includes, but is not limited to, any civil rights lawsuit seeking relief personally against the officer, employee, or agent for an act or omission under color of state law, custom, or usage, wherein it is alleged that such officer, employee, or agent has deprived another person of rights secured under the Federal Constitution or laws.... (underline and bold added). The Plaintiff has alleged the Mayor acted either (i) "within the scope of his employment;" or (ii) "under color of law."4 Based upon the allegations of the Complaint regarding the capacity in which the Mayor acted, the City may provide an attorney to defend him pursuant to Section 111.07. The Plaintiff has also alleged that the Mayor acted "with knowing, willful, wanton, grossly reckless, unlawful, unreasonable, unconscionable, and flagrant disregard of Plaintiffs rights, privileges, welfare, and well-being...." While this general allegation does not trace the exception clause of Section 111.07 (set forth in bold above), it does allege that the Mayor acted 4 These allegations were necessary elements of the specific causes of action pled by the Plaintiff. 6 4802426-11 Submitted into the public record in connection with items DI.3 on 02-14-13 Tndd R. Hannnn "with...willful...disregard of [Plaintiff's] rights." If the Plaintiff proves other elements of a cause of action and that the Mayor acted with willful disregard of Plaintiff's rights,5 then the Mayor's conduct may fall outside the scope of the City's authority to pay for his legal defense under Section 111.07. While the foregoing provisions of Section 111.07 provide the framework for the eligibility of a public official for legal defense paid for by the City, it does not address the timing or the conditions under which the City may provide such defense. The Mayor has requested that the City pay for his legal defense on an ongoing basis. Section 111.07 also provides guidance on the time and extent of payment for the Mayor's defense: ...However, any attorney's fees paid from public funds for any officer, employee, or agent who is found to be personally liable by virtue of acting outside the scope of his or her employment, or was acting in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property, may be recovered by the state, county, municipality, or political subdivision in a civil action against such officer, employee, or agent... (underline added). The underlined language points to a finding by the trier of fact in civil litigation. In that context, the provision quoted above makes clear that the Legislature intended that a municipality may choose whether to pay for the defense up front or while the litigation is ongoing, because the authority to seek recovery through civil action would be unnecessary if the public official could only seek reimbursement for such legal defense. Section 111.07 was originally adopted in 1972, and has gone through several iterations. See Thornber v. City of Ft. Walton Beach, 568 So. 2d 914, 919 n.6 (Fla. 1990). While Section 111.07 provides an additional mechanism for the paid legal defense of public officials, it is not the exclusive mechanism. At common law, public officials are entitled to legal representation at public expense to defend themselves against litigation arising from the performance of their official duties while serving a public purpose. Id. at 917. The government entity from which paid legal representation was sought could find the public purpose or the public official could go to court and compel the City to reimburse him if he showed that the reimbursement served a public purpose. The Supreme Court has held that Section 111.07 did not abrogate the common law rule, but it did recognize the rule. Id. at 918-19; see also City of Fort Walton Beach v. 5 It is assumed that the Mayor intends to deny these allegations, and that the Plaintiff will be required to prove them in court. 7 Submitted into the public record in connection with items 0I.3 on 02-14-13 Todd B. Hannon 4802426-11 Grant, 544 So.2d 230, 237 (Fla. lst DCA1989). The well -established purpose of the common law rule is to avoid the chilling effect that a denial of representation might have on public officials in performing their duties properly and diligently. Thornber, 568 So. 2d at 917, citing Nuzum v. Valdes, 407 So.2d 277 (Fla. 3d DCA 1981). The purpose behind the common law rule almost certainly constitutes a valid public purpose, and therefore as a general principal, the substantive circumstances under which Section 111.07 authorizes/requires the expenditure of public funds constitute a public purpose. It cannot be concluded necessarily that the Legislature considered the public purpose behind the payment for legal defense on an ongoing basis, as permissible under Section 111.07. As previously discussed, Section 111.07 has not been challenged under Article VII, Section 10, facially or as applied. Furthermore, under the common law rule, public officials were entitled to reimbursement of or indemnification for attorneys' fees and costs incurred by them in connection with lawsuits arising from the performance of their official duties, as opposed to payment on an ongoing basis. See Thornber, 568 So. 2d 914, 916-17, citing Miller v. Carbonelli, 80 So.2d 909 (F1a.1955); Williams v. City of Miami, 42 So.2d 582 (F1a.1949); Peck v. Spencer, 26 Fla. 23, 7 So. 642 (1890); Lomelo v. City of Sunrise, 423 So.2d 974 (Fla. 4th DCA 1982), review dismissed, 431 So.2d 988 (F1a.1983); Ellison v. Reid, 397 So.2d 352 (Fla. 1st DCA 1981). To put the City in the best position with respect to a challenge to a decision to pay for the Mayor's legal defense on an ongoing basis, should the City decide to take this action, the best practice is for the City Commission to consider the ways in which payment in such manner serves a public purpose, and decide to agree to or deny the Mayor's request based on thorough debate and a considered finding. For example, in discussing factors that favor denial of the Mayor's request, the City Commission should consider one of their central roles as members of the City's governing board — they are entrusted with making prudent decisions with public money. From a practical standpoint, if the City agrees to pay for the Mayor's legal defense on an ongoing basis and the Plaintiff ends up proving her case and specific facts that take the Mayor's conduct outside of the scope of Section 111.07 or the common law rule, the Mayor would be required to reimburse the City for the public money spent on his defense. But the City's ability to collect such expenditures is unknown. The City could spend substantial public money to defend the Mayor, and the facts may bear out that the Plaintiff was right. In such case, the City could be in the unfortunate position of having spent public money on a person deteiuiined to 4802426-11 Submitted into the public record in connection with items D1.3 on 02-14-13 Todd B. Hannon have abused his public office, while at the same time having no recourse to recover such expenditures. There may be other reasons the City Commission may find that a public purpose is served by reimbursement of reasonable attorneys' fees and costs incurred and not paid legal on an ongoing basis. Another example might be that City Commissioners have personal knowledge of events that may bear upon the likelihood that the City would have to seek repayment of such legal defense costs in the future. On the other hand, there may be factors generally and specific to this case the City Commission may find a public purpose is served by approval of the Mayor's request. Generally, if a public official's ability to investigate, debate freely or cast votes regarding issues of public interest or concern, or do anything else related to the official's political office can be chilled, frustrated or otherwise impacted out of fear of having to incur attorneys' fees and costs as a result of one's conduct or inaction, then public service may not be worth the price. The chilling effect that is the purpose for the common law rule on the paid legal defense of public officials might support approving any request for paid legal defense on an ongoing basis. Even though public officials have the right to be reimbursed for reasonable attorneys' fees and costs incurred in lawsuits against them personally, the need to front those attorneys' fees and costs certainly could contribute to a chilling effect, regardless of whether the Plaintiff is another public official or simply a member of the public. This chilling effect could discourage less well-off persons from seeking public office, which could narrow the perspectives of those making policy decisions for the City. In this specific case, the allegations against the Mayor are made by a sitting City Commissioner, not simply a member of the public. Such a dispute betwecn members of the same governmental power structure could be used as a tool to chill the full expression of opposing viewpoints on the same dais or even to force those opposing viewpoints out of office. Economic disparity between such public officials and the financial realities of the judicial process could allow wealthier members to use lawsuits against other public officials with lesser means as a political proxy war. Already, a public official's likelihood of being sued pursuant to 42 U.S.C. §1983, which contains prevailing party attorneys' fees for the plaintiff, but not the defendant (except in the 9 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 4802426-11 case of frivolous claims)6, puts public officials at an economic disadvantage. Such lawsuits are frequently filed against public officials. The availability of prevailing party attorneys' fees for plaintiffs makes it substantially more likely that plaintiffs in such actions against public officials are able to obtain representation pursuant to a contingency fee arrangements which require no payment of attorneys' fees and costs up front. Paid legal defense on an ongoing basis would serve to eliminate that disadvantage and encourage public service in the face of lawsuits brought against public officials acting in their official capacity, including claims brought under 42 U.S.C. §1983. The foregoing discussion is not intended to be exhaustive. The factors relevant to and the determination of public purpose are legislative in nature and must be made by the City Commission. The City Commission should weigh factors it considers important to the public, and make a decision that serves a public purpose as it determines. That decision could be the policy of the City going forward for requests considering the basis for the City Commission's public purpose determination, or it could be highly specific to the circumstances of the Mayor's request. 6 Christiansburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412, 416-17 (1978), 10 4802426- I 1 Submitted into the public record in connection with items DI.3 on 02-14-13 ...4 0 U,snesear. Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 1 of 114 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MICHELLE SPENCE-JONES, Plaintiff, -against- No. 12 Civ. STATE ATTORNEY KATHERINE FERNANDEZ RUNDLE, MAYOR TOMAS REGALADO, ASSISTANT STATE ATTORNEY WILLIAM RICHARD SCRUGGS, and INVESTIGATOR ROBERT FIELDER, Defendants. COMPLAINT Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 2 of 114 TABLE OF CONTENTS PRELIMINARY STATEMENT 1 JURISDICTION AND VENUE 4 JURY DEMAND 5 PARTIES 5 STATEMENT OF FACTS 6 Spence -Jones Is Elected Commissioner; Popular with Her Constituents, Unpopular with Regalado 6 The Office of the State Attorney: Rundle for Over 19 Years 8 Regalado and Rundle: A Team 8 Scruggs' History of Troubled Prosecutions ..... ............. ....... ............. 12 The Costa Rica Fiasco: Scruggs Is Criminally Charged 12 The Waco Fiasco: Scruggs Is "Clearly Negligent ........ ....... 13 The Gaston Smith Fiasco: "Very Unprofessional" Withholding of Evidence 14 The Berry/Smith Fiasco: More Withholding of Evidence from the Defense15 Defendants Prepare Their Scheme to Arrest Spence -Jones and Kick Her off the Commission 16 Spence -Jones is Elected, Sworn -In, and Promptly Arrested and Suspended 19 Spence -Jones is Elected 19 Governor Crist 20 Regalado Prepares For Spence -Jones' Arrest, and Tries To Destroy a Photograph 21 Rundle Times Spence -Jones' Arrest Right After She Is Sworn -In 22 Rundle Defames Spence -Jones 23 11 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 3 of 114 Crist Suspends Spence -Jones (Suspension #I) 25 Rundle and Regalado Attempt to Manipulate the Composition of the Commission 26 The Importance of Waiting Until Spence -Jones Was Sworn In Before Arresting and Suspending Her 26 A Snag: No Quorum to Replace Spence -Jones; a Ten -Day Deadline Expires 27 Rundle Tries to Manipulate the Commission 29 Regalado Tries to Manipulate the Commission 29 The Carey-Shuler Charge: Baseless and Based on Fabricated Evidence 31 Carey-Shuler Authorizes $50,000 to Karym 32 The SAO Defendants Hide the Evidencefrom Carey-Shuler 35 Carey-Shuler's Sworn Statement: More Lies from the SAO 37 The False Fielder Arrest Affidavit 38 The SAO's False Carey-Shuler Information 40 The SAO Defendants Attempt to Hide the Evidence Spence -Jones 41 Spence -Jones is Re -Elected; Crist Suspends Her Again (Suspension #2) ........ 41 A Second Race Against Time; District 5 Loses Its Vote Again; "Magic City" For Regalado 43 Spence -Jones and Her Constituents Sue to Regain the Commission Seat 46 A Third Race Against Time: the SAO Indicts; Crist Suspends Spence -Jones Again (Suspension #3) 47 The Codina Case: Another Case, Another Fraud 49 The Renaming of Southeast Second Ave .......... ...... ....... ............ 50 A City of Miami Benefit in the Lyric Theater ......... ....... ....... ..... 51 The SAO Defendants Intimidate and Falsely Accuse Codina 53 111 Submitted into the public record in connection with items DI3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 4 of 114 The SAO Defendants Lie to and Manipulate Codina 54 Codina Is Duped, by the SAO 56 Defendants Defame, Arrest, and Attempt to Humiliate Spence -Jones 58 Scruggs Personal Vendetta Against Raben; Rundle: "Boys Will Be Boys" 60 Raben Deposes Carey-Shuler; Carey-Shuler Learns She Was Deceived; the SAO Defendants Continue to Pursue the Fraudulent Case 61 Codina Also Learns He Was Deceived; the Extraordinary Codina Deposition; Scruggs Doubles -Down on His Lies 62 The Trial: the Codina Case Is Exposed to the World as a Fraud 65 Regalado-Rundle's Back -Door Meeting; Machinations to Extend the Carey- Shukr Case 67 Rundle/Scruggs Defame Spence -Jones and Raben in an Outrageous "Closeout Memo,- then Send the Defamatory Memo to the Miami Press Corps....... .......... 70 Carey-Shuler and Codina IdentiA. the True Source of the Fraud: the SAO 75 Two Years in the Wilderness: A Public Servant in Ruins ............... .................... 75 AS AND FOR A FIRST CLAIM FOR RELIEF 42 U.S.C. § 1983, Fabrication/ Concealment of Evidence in Carey-Shuler Case (Against SAO Defendants) 77 AS AND FOR A SECOND CLAIM FOR RELIEF 42 U.S.C. § 1983, Fabrication/ Concealment of Evidence in Codina Case (Against SAO Defendants) 79 AS AND FOR A THIRD CLAIM FOR RELIEF 42 U.S.C. § 1983, False Arrest for Carey-Shuler Case (Against SAO Defendants) 80 AS AND FOR A FOURTH CLAIM FOR RELIEF 42 U.S.C. § 1983, Malicious Prosecution and Seizure for Carey-Shuler Case (Against SAO Defenants) 81 AS AND FOR A FIFTH CLAIM FOR RELIEF 42 U.S.C. § 1983, Malicious Prosecution and Seizure for Codina Case (Against SAO Defendants) 82 AS AND FOR A SIXTH CLAIM FOR RELIEF 42 U.S.C. § 1983, First Amendment Retaliation (Against SAO Defendants) 83 iv Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 5 of 114 AS AND FOR A SEVENTH CLAIM FOR RELIEF 42 U.S.C. § 1983, Civil Rights Conspiracy (Against all Defendants) 84 AS AND FOR AN EIGHTH CLAIM FOR RELIEF 42 U.S.C. § 1983, Supervisory Liability (Against Rundle) 87 AS AND FOR A NINTH CLAIM FOR RELIEF Civil RICO, 18 U.S.C. § 1962 (c) & (d) (Against all Defendants) 88 The Enterprise 88 Pattern of Racketeering Activity — Mail and Wire Fraud ........ ...... 90 Relationship of Pattern of Racketeering Activity to Enterprise 92 AS AND FOR A TENTH CLAIM FOR RELIEF 42 U.S.C. § 1983, Retaliatory Inducement to Prosecute (Against Regalado) 93 AS AND FOR AN ELEVENTH CLAIM FOR RELIEF 42 U.S.C. § 1983, Due Process/Stigma Plus (Against SAO Defendants) 95 AS AND FOR A TWELFTH CLAIM FOR RELIEF Florida RICO, Title 45, § 772.103(3) and (4) (Against all Defendants) 97 The Enterprise 97 Pattern of Racketeering Activity — Tampering with a Witness 100 Pattern of Racketeering Activity — Tampering with or fabricating physical evidence 101 Relationship of Pattern of Racketeering Activity to Enterprise 101 AS AND FOR A THIRTEENTH CLAIM FOR RELIEF Florida Common Law/False Arrest for Carey-Shuler Case (Against SAO Defendants) 102 AS AND FOR A FOURTEENTH CLAIM FOR RELIEF Florida Common Law/ Malicious Prosecution for Carey-Shuler Case (Against SAO Defendants) 103 AS AND FOR A FIFTEENTH CLAIM FOR RELIEF Florida Common Law/ Malicious Prosecution for Codina Case (Against SAO Defendants) 104 AS AND FOR A SIXTEENTH CLAIM FOR RELIEF Florida Common Law/ Intentional Infliction of Emotional Distress 105 PRAYER FOR RELIEF 106 v Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 6 of 114 Plaintiff Michelle Spence -Jones ("Spence -Jones" or "Plaintiff'), by her attorneys Emery Celli Brinckerhoff & Abady LLP and Ray Taseff, P.A., for her Complaint alleges as follows: PRELIMINARY STATEMENT 1. This case arises from a shocking, nefarious scheme by Miami Mayor Tomas Regalado and State Attorney Katherine Fernandez Rundle to remove Commissioner Michelle Spence -Jones from her elected position as Miami City Commissioner. Serving as the investigatory, police, and prosecutorial arm of the Mayor, Rundle, aided by assistant prosecutor Richard Scruggs and investigator Robert Fielder, manufactured false evidence, hid and withheld exculpatory evidence, intimidated and manipulated witnesses, defamed Spence -Jones, and repeatedly attempted to manipulate the political process, in a corrupt attempt to remove, arrest, imprison, and forever ruin a dedicated Miami public servant. And when the scheme unraveled, when the witnesses realized they had been lied to, when the exonerative evidence could no longer be suppressed, Rundle and her team covered up their own wrongdoing, recklessly and falsely accusing Spence -Jones and her well -respected defense counsel of yet more crimes, to the entire world.' 2. The primary players in this fraudulent enterprise were, first, the Mayor of Miami, Tomas Regalado, Spence -Jones' political rival, who was unable to control Spence -Jones' critical vote on the powerful Miami City Commission. Second, State Attorney Katherine Fernandez Rundle, Regalado's friend and political ally, who shared a web of cozy connections and dealings with the Mayor. Rundle took a personal interest in the downfall of Spence -Jones, repeatedly defaming her in public, overseeing her investigations and arrests, and manipulating the criminal process and interfering in internal Commission politics to keep Spence -Jones off the A summary timeline of the scheme is attached as Exhibit A to the Complaint. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 7 of 114 Commission. In the notorious assistant prosecutor Richard Scruggs, Rundle found the perfect right-hand man to destroy Spence -Jones. Scruggs had been criminally charged by a foreign government, found "clearly negligent" by the U.S. Department of Justice for his handling of the Waco investigation, criticized by Florida courts for "very unprofessional" conduct and withholding of evidence from the defense, and even carried a personal vendetta against Spence - Jones' defense lawyer. In their efforts, Rundle and Scruggs were aided by their investigator, Robert Fielder. 3. This civil rights action seeks damages for defendants' conspiracy, a conspiracy that involved, inter alia, manufacturing evidence and concocting baseless corruption charges in two separate cases: the Armando Codina case, and the Barbara Carey-Shuler case. 4. In the Codina case, the Office of the State Attorney for Miami -Dade County (SAO) told Codina that Spence -Jones was a thief, had stolen his money, and had induced him to contribute to a non-existent charity as part of a non-existent charity event. Each and every statement was a deliberate lie. There was a charity, there was a charity event, the money was deposited with one of the most well -respected foundations in Florida, and Spence -Jones stole nothing. But it took years to unravel these lies, years while Spence -Jones remained falsely accused of bribery and grand theft, years while she remained off the Commission. When Codina finally learned about the SAO's deception, he publicly pronounced the prosecutor a "serial liar.- 5. In the Carey-Shuler case, the SAO had definitive proof —including handwritten drafts —that Miami Dade County Commissioner Carey-Shuler had authorized payment to a company affiliated with Spence -Jones for a neighborhood rebuilding project. Instead, the SAO hid the documents and falsely told Carey-Shuler that Spence -Jones had forged her name and stolen from Miami -Dade County, too. It took years to unravel these lies, years of 2 Submitted into the public record in connection with items 0I.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 8 of 114 persistent, dogged investigation by Spence -Jones' lawyer, Peter Raben, years while Spence - Jones remained falsely accused of grand theft, years while she remained off the Commission. As Shuler's lawyer later said after defendants' scheme unraveled, the SAO "lied to her [Shuler]," too. 6. Defendants perpetrated quite a scheme: two contrived political corruption cases, both relying on a star witness the SAO Defendants lied to and manipulated, both who later learned that prosecutors tricked and defrauded them. But the goal in both cases was the same: remove Spence -Jones from the Commission, and ruin her as a potent political force and rival of the Mayor. 7. What was the ultimate result of this fraudulent scheme? In the Codina case, after an over two -week trial, a jury acquitted Spence -Jones in fewer than 90 minutes. In the Carey-Shuler case, even after Carey-Shuler learned the truth and testified under oath there was no theft, defendants dragged the case for over a year, in a Regalado-induced bid to keep Spence - Jones off the Commission for as long as possible. Then the SAO tried to extort Spence -Jones to make a public admission that the prosecution was "fair," as a condition of dismissing the fraudulent case. 8 When defendants were finally forced to dismiss the non-existent Carey- Shuler case, they lied again, in the now -infamous "Closeout Memo" accusing Spence -Jones and Raben of forging and planting the Carey-Shuler drafts into an "empty" file— another defamatory attempt to ruin Spence -Jones' good name and cover up defendants' own fraudulent scheme. 9. Even by the sometimes sordid standards of Miami politics, the Rundle- Regalado conspiracy stands out for its brazenness. As a result of defendants' prosecution -laden brand of power politics, Spence -Jones' life was virtually destroyed. She lost her liberty, her job, Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 9 of 114 her reputation. Her constituents lost a powerful voice for the people of Miami. For nearly two long, lonely years, Michelle Spence -Jones fought to reclaim her liberty and her good name. Now, it is time the people who perpetrated this outrageous injustice finally be held to account. 10. Spence -Jones brings this civil rights action seeking damages for defendants' violations of her rights, privileges, and immunities under the United States Constitution, the Civil Rights Act of 1871, 42 U.S.C. § 1983, the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 ("RICO") and its Florida counterpart, the Civil Remedies for Criminal Practices Act (-Florida RICO"), Title 45 of the Florida Code, § 772.101-19, and Florida common law. JURISDICTION AND VENUE 11. This action arises under the First, Fourth and Fourteenth Amendments to the United States Constitution, 42 U.S.C. §§ 1983 and 1988, 18 U.S.C. §§ 1961-1968, Title 45 of the Florida Code, § 772.104, and Florida common law. 12. The jurisdiction of this Court is predicated upon 28 U.S.C. §§ 1331, 1343(a) (3) and (4), 1367(a), and the doctrine of supplemental jurisdiction. 13. A substantial part of the acts complained of occurred in the Southern District of Florida, and venue is lodged in this Court pursuant to 28 U.S.C. § 1391(b). 14. On February 14, 2012, pursuant to Chapter 768, Florida Statutes, Plaintiff served by certified mail a written Notice of Intent to File a Claim upon the Office of the State Attorney, 1350 N.W. 12 Ave, Miami, Florida and the Department of Financial Services, 200 East Gaines Street, Tallahassee, Florida. 15. At least six months have elapsed since the service of the notice of claim, and adjustment or payment of the claim has been neglected or refused. 4 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 10 of 114 JURY DEMAND 16. Plaintiff demands a trial by jury. PARTIES 17. Plaintiff Michelle Spence -Jones is a resident ofMiami, Florida and the City Commissioner representing District 5 in Miami. 18. Defendant Katherine Fernandez Rundle was at all timeselevant hereto the State Attorney for Miami -Dade County. She personally led and directed the fraudulent investigations, arrests, seizures, detention, imprisonment, and prosecutions of Spence -Jones. She led frequent meetings and conference calls concerning the Spence -Jones conspiracy. On information and belief, a number of phone calls and emails between Rundle, Scruggs and others advancing the conspiracy crossed state lines. She is being sued in her personal capacity. 19. Defendant William Richard Scruggs was at all times relevant hereto the Special Assistant to the State Attorney for Public Corruption, at the Office of the State Attorney for Miami -Dade County. On information and belief, Scruggs reported directly to Rundle. He directed and participated in the fraudulent investigations, arrests, seizures, detention, imprisonment, and prosecutions of Spence -Jones. He is being sued in his personal capacity. 20. Throughout the Shuler and the Codina cases set forth below, Rundle and Scruggs not only directed the prosecutions. They ran and directed the criminal investigations, arrests, seizures, and imprisonment of Spence -Jones, serving the traditional functions and role of the police. Rundle and/or Scruggs interviewed witnesses and took witness statements, gathered, manipulated, and hid evidence, and ordered Spence -Jones' arrests, seizures, detention, and imprisonment. 21. Defendant Robert Fielder was at all times relevant hereto a State Attorney Investigator, employed by the Office of the State Attorney for Miami -Dade County and acting 5 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 11 of 114 within the scope of his employment as such. Prior to joining the State Attorney's Office, he was a police officer with the City of Miami Police Department for twenty-nine years. Fielder was the lead investigator in both cases against Spence -Jones. He worked at the speed, pleasure, and direction of Rundle, Scruggs and the SAO. He participated in and furthered the fraudulent investigations, arrests, seizures, detention, imprisonment, and prosecutions of Spence -Jones. He is being sued in his personal capacity. 22. Rundle, Scruggs and Fielder will be collectively referred to herein as the "SAO Defendants." 23. Defendant Tomas Regalado is the Mayor of the City of Miami, acting in the capacity of agent, servant, and employee of the City and within the scope of his employment as such. He is being sued in his personal capacity. STATEMENT OF FACTS Spence -Jones Is Elected Commissioner; Popular with Her Constituents, Unpopular with Regalado 24. In 2005, Spence -Jones was elected Commissioner for District 5 in the City of Miami. 25. In that election, Spence -Jones defeated Richard Dunn in a run-off vote. 26. The Miami City Commission ("Commission") is a powerful and important legislative body in Miami. The Commission can pass ordinances and adopt regulations. 27. There are only five commissioners in Miami, each serving one of five districts in the City of Miami. 28. Commissioners are re-elected every four years. 29. District 5 is largely African -American, and one of the poorest districts in the City of Miami. 6 Submitted into the public record in connection with items D1.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 12 of 114 30. Spence -Jones, who is also African -American, was a powerful voice for her community. She quickly developed a reputation for independence and loyalty to her constituents, often fighting powerful, moneyed, and entrenched interests for the sake of what she believed to be the good of her District and the City. 31. From late 2001 through 2009, Manny Diaz was the Mayor of Miami. During part of his tenure, and before Spence -Jones was elected a Commissioner, she worked for Mayor Diaz as a city employee. 32. When Spence -Jones became Commissioner in 2005, she and Mayor Diaz were political allies, 33. For example, Spence -Jones and Diaz worked together on low-income housing and economic development projects in Spence -Jones' district and on parks initiatives. 34. Regalado also served as a City Commissioner during the 2005-2009 period. 35. Regalado came from a somewhat different school of politics than Spence - Jones, a school based on friendship, patronage, and political favors. 36. Regalado and Diaz became political enemies, and fought frequently during Regalado's tenure on the Commission. 37. Regalado was known as "Dr. No" on the dais: if Diaz and Spence -Jones favored a Commission resolution or ordinance, Regalado was likely to vote "no." 38. The Commission had a delicate balance of power during the 2005-2009 period. A majority of three out of five votes was necessary to carry an item, and Spence -Jones was usually the swing vote on major issues before the Commission. Commissioners Angel Gonzalez and Joe Sanchez were usually on the side of Mayor Diaz; Regalado and Marc Sarnoff 7 Submitted into the public record in connection with items D1.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 13 of 114 (elected in November 2006) were usually on the other side. With Spence -Jones' swing vote, Mayor Diaz' initiatives usually carried the day. 39. In short, Spence -Jones was often the key vote on the Commission, on important issues such as the Marlins stadium. The Office of the State Attorney: Rundle for Over 19 Years 40. The Miami -Dade Office of the State Attorney, Ilth Judicial Circuit, is the prosecutorial office in Miami -Dade County, which includes the City of Miami. 41. On March 12, 1993, after being appointed to succeed Janet Reno (who left the position to become President Clinton's Attorney General), Kathleen Fernandez Rundle became the State Attorney, the top official at the SAO. 42. Rundle's office, however, is an elected position. Since 1993, Rundle has been dependent on votes to maintain and continue her position as the State Attorney. 43. Rundle has now been the State Attorney in charge of the SAO for over nineteen years. 44. As the State Attorney, Rundle has had responsibility for overseeing every aspect of the SAO, including investigations run by Scruggs. Scruggs was a high-ranking prosecutor in the SAO's public corruption unit until shortly after the SAO's high -profile losses in the two cases against Michelle Spence -Jones. Regalado and Rundle: A Team 45. Rundle was and is a close political ally of Regalado. They shared political interests, staff, and as set forth below, have enjoyed a mutually beneficial relationship. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 14 of 114 46. For example, Rundle and Regalado shared the same campaign consultant, Armando Gutierrez. Gutierrez was a long-time campaign consultant for Rundle. Gutierrez was Regalado's campaign manager in his Mayoral race, 47. Rundle's close family friend, Ada Rojas, was also Regalado's Community Relations Coordinator. 48. On information and belief, Regalado attended a fundraiser for Rundle, and they have appeared together at press conferences and other functions in Miami. 49. On information and belief, Regalado has previously promoted Rundle on the radio. A popular Mayor, Regalado was an important politician whose voters, constituency, and support were very useful to Rundle, herself an elected official. 50. Regalado and Rundle's special relationship has apparently progressed to the point of mutually beneficial, and highly questionable, quid pro quo arrangements. 51. For example, Rundle has repeatedly refused to properly investigate allegations of criminality concerning Regalado. 52. In October 1999, Rundle closed out an investigation into allegations of grand theft based on the alleged misuse of a gas credit card by then -Commissioner Regalado. 53, The SAO admitted that there was evidence of a "serious" issue concerning numerous charges to Regalado's City -issued gas credit card from outside Miami's borders, charges for which Regalado had no explanation, as well as a "discrepancy" in the amount of gas purchases as compared to the miles driven. 54. Yet Rundle closed the investigation without charging Regalado. She justified some of the discrepancies as caused by Regalado's use of a gas -guzzling utility vehicle. 9 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 15 of 114 55. Regalado was only too happy to return the favor. For example, Regalado secretly pressed for a Commission resolution to rename a 56-block road in the heart of Miami in Rundle's honor. 56. In 2008, the Florida State legislature passed a bill renaming of a portion of NW/SW 12th Avenue in Miami as "Katherine Fernandez Rundle Avenue." 57. The Miami City Commission was required to ratify the renaming before the Florida Department of Transportation could post the new street signs. 58. The Commission did not ratify the bill in 2008, 2009, or 2010. 59. After the issue lay fallow for three years, Rundle's office secretly asked Regalado to ensure that the Commission ratify the bill. 60. On January 18, 2011, Regalado secretly emailed the Deputy City Manager for the City of Miami to have the City Commission pass a resolution naming the avenue after Rundle. 61. In his email, Regalado pressed to "place [the Resolution] the consent agenda for [the] next commission meeting." 62. Per Regalado's demand, the item was placed on the March 10, 2011 City Commission agenda. 63. When questioned by the Miami Herald, however, Regalado falsely denied having any role in the renaming of "Katherine Fernandez Rundle Avenue." 64. Ultimately, Regalado's role was revealed when the press obtained his January 18, 2011 email. 10 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 16 of 114 65. On March 10, 2011, the Commission voted 3-0 to approve the renaming of Katherine Fernandez Rundle Avenue. Rundle was not only living, but the chief prosecutor in the jurisdiction that included the Mayor and the Commission. 66. Just months after Regalado shepherded the renaming of "Katherine Fernandez Rundle Avenue," Regalado was once again in criminal jeopardy. 67. In September 2011, after an investigation into campaign finance violations by Mayor Regalado and Raquel Regalado, his daughter and campaign finance manager, the Florida Department of Law Enforcemcnt (FDLE) issued a report detailing the findings from its investigation. 68. The FDLE investigation revealed blatant and criminal campaign violations that included forging campaign finance reports. 69. A Forensic Auditor with the Miami -Dade Commission on Ethics and Public Trust (COE) outlined six violations of Chapter 106, Florida Statutes by Regalado and his daughter. 70. COE Director Joseph Centorino (a former prosecutor at the SAO) and SAO Assistant State Attorney Howard Rosen both believed that Regalado had acted "in apparent willful disregard for the rule of law." 71. Rundle had previously recused herself from investigations of other politicians with whom she was close, including then -Mayor Joe Carollo, former City Manager Donald Warshaw, and then -City Commissioner Johnny Winton. 72. But Rundle did not recuse herself in the Regalado case. 73. To the contrary, Rundle assumed responsibility for the investigation of her friend, ally, and recent road -renaming benefactor. 11 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 17 of 114 74. Despite substantial evidence of Regalado's criminal wrongdoing, and the opinions of the Director of the Miami -Dade Commission on Ethics and Public Trust and her own Assistant State Attorney, Rundle did not file charges against Regalado. 75. Instead, Mayor Regalado and Raquel Regalado "agreed to pay a fine that was agreed at $5,000 each for the violations enumerated," as a civil penalty, without any criminal charge. 76. Rundle took no steps to force Regalado to resign. 77. In marked contrast, when Rundle believed that then -Miami -Dade County Commissioner Bruce Kaplan had violated financial disclosure rules, she extracted Kaplan's resignation and a promise not to seek reelection as part of a plea bargain. 78. In short, even as Rundle concocted a false bribery charge against Spence - Jones related to a street naming, see infra, Rundle herself failed to pursue any criminal charges against the very Mayor who had just helped rename an avenue after herself notwithstanding his "apparent willful disregard for the rule of law." Scruggs' History of Troubled Prosecutions 79. Rundle's right-hand man in the Spence -Jones cases, Assistant State Attorney Richard Scruggs, was a senior attorney in the so-called public corruption unit of the SAO. 80. Scruggs himself had a long and troubled history of prosecutorial misconduct and unprofessionalism. The Costa Rica Fiasco: Scruggs Is Criminally Charged 81. For example, in 1993, the Costa Rican government filed criminal charges against Scruggs. 12 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 18 of 114 82. The charges stemmed from then-U.S. Deputy Attorney General Scruggs' involvement in a botched attempt to extradite the suspected leader of a cocaine smuggling operation, Israel Abel. 83. Abel claimed that Scruggs kidnapped him in Costa Rica; the Costa Rican government agreed. 84. In 1993, the Costa Rican government filed three protests against the American government. 85. The Costa Rican government also filed criminal charges against Scruggs. 86. To date, Scruggs has refused to return to Costa Rica to face those criminal charges. The Waco Fiasco: Scruggs Is "Clearly Negligent" 87. In addition, the United States Dept ment of Justice (DOJ) castigated Scruggs for his failure, as a Deputy Attorney General, to perform a proper investigation into the 1993 confrontation between the FBI and the Branch Davidians in Waco, Texas. 88. Scruggs was the principal author of an October 1993 DOJ report into the confrontation, known as the "Scruggs Report." Among other findings, the "Scruggs Report" concluded that pyrotechnic devices used by the FBI during the raid were "nonincendiary." Scruggs also repeatedly told members of the House Committee on Government Reform and Oversight and the House Judiciary Committee that no pyrotechnic devices were used at Waco in 1993. 89, The Scruggs Report was false. 90. In November 2000, the DOJ Office of Special Counsel prepared a final report regarding the Waco stand-off. 13 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 19 of 114 91. The final DOJ report was a scathing critique of Scruggs: "The failure of the Scruggs team to discover and report that the FBI used pyrotechnic tear gas rounds was the result of initiating the investigation with the assumption that the FBI had done nothing wrong, was inconsistent with the responsibility to conduct a thorough and complete investigation, and was clearly negligent." The Gaston Smith Fiasco: "Very Unprofessional" Withholding of Evidence 92. Notwithstanding the above, in 2003, Rundle hired Scruggs to work in the SAO. Rundle decided that Scruggs --an apparent fugitive whom DOJ had declared "clearly negligent" —should be her Special Assistant to the State Attorney for Public Corruption. 93. In 2009, in that role, Scruggs was again castigated, this time by Florida Circuit Court Judge Beatrice Butchko, for his role in the Rev. Gaston Smith case. 94. Judge Butchko reprimanded Scruggs for his involvement in an investigation where a Miami -Dade police detective, Detective Garcia (also involved in the Spence -Jones investigation) had unlawfully secretly recorded conversations between criminal defense attorneys, their client, and the prosecution. See Florida v. Smith, No. F08003920, slip op. at 11 (Fla. Cir. Ct. Dec, 4, 2009). When Scruggs learned of the secret taping, he did not promptly disclose the information to the defense. 95. Judge Butchko called Scruggs' failure to disclose the secret recordings -very unprofessional." Id. at 12. 96. Judge Butchko stated that Scruggs' failure to document the date when the secret recordings were disclosed to him was "unacceptable." Id. at 12. 14 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 20 of 114 97. In further foreshadowing of his later misconduct in the Carey-Shuler case, Scruggs admitted that he "avoid[ed] . . a full disclosure of his boxes" by directing a reporter to what Scruggs allegedly "thought was relevant." Id. at 17. 98. The court expressed disbelief that Scruggs "testified in court that [he] intentionally tried to get around complying with a lawful public records request, because [he does not] like the practice." Id. at 16. Judge Butchko described Scruggs' violation of the Florida Public Records Act as "very bad." 99. Judge Butchko also stressed that it was "very improper" for Scruggs to discuss the case with reporters on matters unrelated to the prosecution of Smith. Id. at 17. The Berry/Smith Fiasco: More Withholding of Evidence from the Defense 100. In 2012, Scruggs was involved in yet another case involving a failure to disclose important evidence to the defense. 101. Cliff Berry, Inc. and Jeffrey C. Smith were found guilty of two counts of grand theft. The defendants later filed an appeal, inter alia, because Scruggs failed to disclose that the testimony by the State's key witness had changed substantially from deposition to trial. 102. The Florida Third District Court of Appeal reversed the criminal conviction against the defendants because, inter alia, Scruggs and the SAO "failed to notify the defense that [the key prosecution witness'] testimony had changed until after [he] began testifying" at trial, violating a Florida disclosure rule. See Cliff Berry, Inc. v. Florida, No. 3D09- 389, 2012 WL 10846, at *12, 14, 16 (Fla. Dist. Ct. App. Jan. 4, 2012). 103. The appellate court noted that Scruggs was quite aware of the changes to the key witness' testimony before the witness took the stand, but failed to notify the defense until 15 Submitted into the public record in connection with items 01.3 on 02-14-13 Tndd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 21 of 114 after the witness had begun testifying. See id. at * 12. Even then, the disclosure was not made on the record and included only a general statement regarding the changes to the testimony. See id. Defendants Prepare Their Scheme to Arrest Spence -Jones and Kick Her off the Commission 104. With this understanding of Regalado, Rundle, and Scruggs, we turn to the defendants' scheme to remove Spence -Jones from the Commission and eliminate her as an opponent of the Mayor. 105. In the fall of 2009, then-Conunissioner Regalado was running to be Mayor of the City of Miami, and Spence -Jones was running for re-election as a District 5 Commissioner, both elections to occur on November 3, 2009. 106. Regalado was not merely running for Mayor. Aided by Rundle and the SAO, Regalado was also scheming to control the Commission. 107. On multiple occasions in the fall of 2009, during election season, the SAO's office contacted the City of Miami Office of the City Attorney concerning numerous internal Commission matters, including the procedure for filling a vacancy on the City Commission under the Miami City Charter, how many Commissioners would constitute a quorum sufficient to replace any Commissioners that were suspended, and when an elected Commissioner's teini of office officially begins. 108. The SAO had no legitimate reason to contact the Office of the City Attorney about any of these questions. 109. For example, in or about August/September 2009, SAO Chief Deputy Jose Arrojo contacted a high-level lawyer at the Office of the City Attorney to schedule a meeting. 110. At the SAO, Arrojo was the Chief Assistant of Special Prosecutions, reporting directly to Rundle. 16 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 22 of 114 111. Arrojo requested that the meeting be discreet and secret. 112. At the meeting, Arrojo asked pointed questions concerning the Miami City Charter's provisions for filling a vacancy on the City Commission, including the appointment process, special elections, and how many Commissioners would constitute a quorum. 113. This meeting was unusual and unprecedented. 114. After the "discreet" Arrojo meeting, another SAO prosecutor, Angelica Zayas, an appellate attorney at the SAO, called a high-level lawyer at the Office of the City Attorney, again with questions concerning the Miami City Charter's provisions for filling vacancies on the City Commission. Specifically, Zayas was concerned about whether two Commissioners could constitute a quorum sufficient to appoint other Commissioners. On information and belief, Rundle directed Arrojo and Zayas to make these inquiries. 115. In the weeks preceding the November 3, 2009 election, Rundle herself called the City Attorney for the City of Miami, Julie Bru. Ms. Bru was the highest ranking lawyer in the legal office for the City of Miami. 116. Rundle asked Bru, inter alia, exactly when a City Commissioner takes office after an election pursuant to the Miami City Charter. (Under the Charter, a Commissioner takes office five days after the canvas of the ballots). 117. Rundle had no legitimate reason to call Bru about any of these internal Commission matters. 118. The SAO had no legitimate reason to call the Office of the City Attorney about any of these internal Commission matters. 119. In these various conversations, the Office of the City Attorney informed Rundle and her team that, under the Miami City Charter, if a Commissioner were suspended 17 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 23 of 114 prior to the November 3, 2009 election, the suspension would only be in effect until the seat was filled in that election. In addition, if a Commissioner were suspended in between the election and the swearing -in, the suspension would only be in effect for the few days until the swearing - in. However, if a Commissioner were suspended after the swearing -in, the suspension would be in effect until the next general election, a year away. 120. For example, if Spence -Jones were elected on November 3, 2009 and took office on November 12, 2009, she would have to be suspended after taking office on November 12, 2009 in order for the suspension to be in effect for a year. If, however, she were suspended before November 12, the suspension would only last until November 12, at which point she would re -take her suspended seat. 121. Rundle was keen to know exactly when Spence -Jones would take office. Rundle asked pointed questions as to the precise date after the election that a Commissioner would officially take office. 122. While Rundle and her team were carefully preparing the timing for Spence -Jones' arrest and suspension from the Commission, Regalado was preparing for Spence - Jones' arrest as well. 123. For example, on information and belief in August 2009, long before Spence -Jones' arrest, Regalado attended a meeting of the South Florida AFL-CIO in Miami. There, Regalado told the union members that Spence -Jones was "going to jail." 18 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 24 of 114 Spence -Jones is Elected, Sworn -In, and Promptly Arrested and Suspended 124. On November 3, 2009, Regalado was elected Mayor of the City of Miami. Spence -Jones Is Elected 125. On November 3, 2009, elections for Commissioner were held for Districts 3, 4, and 5 in the City of Miami. As of November 3, 2009, the state of the Commission was as 126. District 1: Angel Gonzales, who represented District 1, remained a Commissioner and was not up for re-election in November 2009. Gonzales was a Regalado opponent. 127. District 2: Marc Samoff, who represented District 2, remained a Commissioner and was not up for re-election in November 2009. Sarnoff was a Regalado ally. 128. District 3: On November 3, 2009, Frank Carollo was elected Commissioner for District 3, which had been represented by Joe Sanchez. 129. District 4, which had been represented by Regalado, had no winner by majority vote. A run-off election between Francis Suarez and Manuel Reyes —who each received between 40% and 45% of the vote —was necessary. 130. District 5: On November 3, 2009, Spence -Jones was re-elected to a four- year term as a Commissioner for District 5, with an overwhelming 82.63% of the vote. 131. Thus, after the November 3, 2009 election, Spence -Jones and Gonzales — both rivals of the Mayor —were slated to fill two seats, Carollo was slated to fill the third, and Samoff, a Regalado ally, was slated to fill the fourth. The remaining seat, District 4, remained open, pending a run-off election. 132. Spence -Jones was due to be sworn into office on November 12, 2009. 133. Defendants, however, had other plans. 19 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 25 of 114 134. Regalado and Rundle, with the assistance of Scruggs and Fielder, conspired to arrest Spence -Jones in order to remove Regalado's political opponent from elected office. 135. Regalado was a driving force behind the scheme to fabricate false charges to remove Spence -Jones from office and continue to pursue those charges even where there was no evidence supporting them. 136. As part of this fraudulent conspiracy, Rundle, Scruggs and Fielder, inter alia, (i) concocted baseless charges by hiding relevant evidence from Carey-Shuler, the critical prosecution witness in the Carey-Shuler case, to cause her to provide unknowingly false testimony; (ii) used that false testimony to file a false arrest affidavit and issue a November 12, 2009 arrest warrant for Spence -Jones; (iii) timed the arrest for maximum political impact; and (iv) planned with the Governor of Florida to ensure that Spence -Jones was removed from office immediately upon being arrested. 137, The scheme involved not only the Carey-Shuler and Codina frauds which are extensively detailed infra, but has also included other baseless investigations of Spence -Jones by the SAO Defendants, over a period of a number of years, in a desperate attempt to produce any evidence which could lead to Spence -Jones' removal from office. Governor Crist 138. Days before an arrest warrant was even issued for Spence -Jones, Florida Governor Charlie Crist knew that Spence -Jones was going to be charged and arrested. 139. On November 10, 2009, two days before Spence -Jones' swearing in, Governor Crist had in his files a document with a picture of Spence -Jones, listing three "felony" charges: "grand theft, organize scheme to defraud, money laundering." 20 Submitted into the public record in connection with items D1.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 26 of 114 140. But Spence -Jones had not been charged with any crime as of November 141. Rundle's office had alerted Crist that Spence -Jones would be arrested. 10, 2009. 142. Before the arrest, Rundle personally spoke with Governor Crist about removing Spence -Jones from the Commission after her arrest. 143. Before the arrest, a high-level member of Crist's staff also contacted the Office of the City Attorney, to inquire precisely when an elected Miami City Commissioner would officially take office. Regalado Prepares For Spence -Jones' Arrest, and Tries To Destroy a Photograph 144. Before he was sworn in on November 11, 2009, Regalado was also well aware, via secret communications with Rundle, the SAO, and Crist, that Spence -Jones was going to be charged and arrested. 145. For example, after November 3, 2009 and, on infoiniation and belief, before November 12, 2009, Regalado's new spokesman, Pat Santangelo, was at the Miami television studios of Island TV. In a conversation there, Santangelo stated that Spence -Jones was going to go to jail on corruption charges. 146. On November 11, 2009, Regalado was sworn in as Mayor. 147. Governor Crist decided to attend Regalado's swearing -in ceremony at City Hall. Shortly before the ceremony, Spence -Jones sought to meet Crist, whom she had never met, and have a photo together. Spence -Jones was brought to a room in City Hall with, inter alia, Regalado and Crist. Regalado and Crist were quite uncomfortable during the brief meeting. As between Crist, Regalado, and Spence -Jones, Spence -Jones was the only person unaware that the SAO Defendants were about to arrest her. 21 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 27 of 114 148. An official photographer for the City of Miami took a picture of Spence - Jones, Regalado, and Crist. 149. After the photograph, Spence -Jones left to attend Regalado's swearing -in ceremony. 150. Regalado later told the City photographer to destroy that photograph. 151. In the entire career of the City photographer, no public official had ever told him to destroy a photograph. 152. Regalado's demand was a violation of the Florida Public Records Act. The photograph of these public officials was a public record that could not be destroyed under Florida law. 153. The photographer, however, disobeyed Regalado's request, and did not destroy the picture. Rundle Times Spence -Jones' Arrest Right After She Is Sworn -In 154. Between Spence -Jones' election on November 3, and her planned swearing -in on November l2, Rundle was busy perfecting the scheme to arrest and remove Spence -Jones at just the right moment. 155. During this period, Rundle personally called Julie Bru, seeking to deteiiziine the precise date when Spence -Jones' old (2005-2009) term would end, and when her new (2009-2013) term would begin. Bru informed Rundle that Spence -Jones' new term would not begin until noon on the fifth day after the canvas of the ballots, which would be November 12. 156. On November 12, 2009, Spence -Jones was sworn into office as City Commissioner for District 5. 22 Submitted into the public record in connection with items oi.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 28 of 114 157 . That same day, just as planned, Rundle and the SAO filed an arrest affidavit and obtained an arrest warrant for Spence -Jones for grand theft, second degree, a felony. 158. Rundle forwarded Govemor Crist the arrest affidavit by email dated November 12, 2009. 159. On November 13, 2009, Spence -Jones turned herself in. 160. At the direction of the SAO Defendants, Spence -Jones was arrested, detained, booked, fingerprinted and jailed in a holding cell. 161. Scruggs asked that corrections officers handcuff Spence -Jones while she was transported to the cell. Upon information and belief, Scruggs made that request in order to arrange a "perp walk" to further humiliate Spence -Jones. 162. An employee of the Miami Dade Corrections Department rejected the request to handcuff Spence -Jones and rejected Scruggs' request to transport Spence -Jones outside (i.e., a "perp walk"), saying it was not necessary. Rundle Defames Spence -Jones 163. On November 13, 2009, Rundle held a press conference. Earlier that day, the SAO issued a press release which remains published on the SAO's official website, available to anyone in Florida, the United States, or anywhere in the world with access to the Internet announcing that press conference. 164. The press conference served no legitimate prosecutorial purpose. Rather, the SAO Defendants intended to and did unfairly and improperly defame Spence -Jones, tar her reputation in the community and in the court of public opinion, and attempt to taint the jury pool that would eventually hear the SAO's fraudulent case. 23 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 29 of 114 165. During the November 13, 2009 press conference, Rundle stated that Spence -Jones is -being charged with theft relating to her acts of re -directing county money for her personal use prior to her becoming a city commissioner, while she was working as a public servant for the City of Miami." 166. Spence -Jones never committed any "acts" of "re -directing county money for her personal use." The statement was deliberately and maliciously false and defamatory. 167. During the press conference, Rundle also stated that Michelle Spence "was not entitled to spend $50,000 that was supposed to go to two other entities for any other puiposc." 168. The statement was deliberately and maliciously false and defamatory. 169. Spence -Jones never spent money that was "supposed to go to two other entities"; the moneys in question were supposed to go the entity that received those moneys: an entity called Karym. 170. On November 20, 2009, Rundle both directly, and through her director of media relations sent e ails to the largest newspaper in Miami, the Miami Herald, accusing Spence -Jones of stealing money. 171. First, Rundle authorized and approved statements sent to Miami Herald reporters stating that, in contrast to Spence -Jones, Commissioner Angel Gonzalez "didn't steal any money." 172. Referring to Spence-Joncs, Rundle also wrote: "Why do some public servants steal from the public"? 24 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 30 of 114 173. Later that morning, and apparently not content to defame Spence -Jones to two Miami Herald reporters, Rundle personally emailed the same accusations against Spence - Jones to the editor of the Miami Herald editorial page. 174. These were deliberately false and malicious statements. Spence -Jones did not steal any money or steal from the public. Crist Suspends Spence -Jones (Suspension #1) 175. On November 13, 2009, just one day after Spence -Jones' swearing -in, Governor Crist issued Executive Order 09-248, immediately suspending Spence -Jones from her Commission seat, and depriving District 5 voters of their elected commissioner. The Executive Order cited, relied upon, and attached a deliberately false November 12, 2009 arrest affidavit of defendant Robert Fielder, an SAO employee and investigator, see infra. 176. Crist's November 13, 2009 Executive Order also prohibited Spence -Jones "from performing any official act, duty, or function of public office; from receiving any pay or allowance; and from being entitled to any of the emoluments or privileges of public office during the period of this suspension; which period shall be from today, until a further Executive Order is issued, or as otherwise provided by law." 177. Crist issued the Executive Order suspending Spence -Jones even before an Information or any charging document had been filed against her. 178. On November 13, 2009, prior to the issuance of the Executive Order, Governor Crist's Deputy General Counsel requested a copy of the non-existent charging document. Although there was no Information or Indictment, and no formal criminal charge had been filed against Spence -Jones, Crist suspended Spence -Jones anyway. 25 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 31 of 114 179. The rush to suspend Spence -Jones was irregular at best. For example, when Cape Coral Commissioner Eric Grill was arrested for three felonies in December 12, 2009, Crist told an Assistant City Attorney that he would not even consider issuing an executive order suspending him until the State Attorney filed formal charges. Grill was only suspended on February 24, 2010, after a formal Information was filed. Rundle and Regalado Attempt to Manipulate the Composition of the Commission 180. As set forth below, Spence -Jones' arrest warrant was based on a November 12, 2009 affidavit of defendant Robert Fielder, an SAO employee and investigator. 181. The Fielder affidavit, in tum, was allegedly based on a September 18, 2009 subpoenaed sworn statement by Barbara Carey-Shuler, the product of Fielder and Scruggs' conspiracy to withhold and fabricate evidence. 182. Rundle and her co-conspirators, however, waited almost two months after the Carey-Shuler statement to arrest Spence -Jones. The Importance of Waiting Until Spence -Jones Was Sworn In Before Arresting and Suspending Her 183. The timing of Spence -Jones' arrest — immediately after she was sworn in as Commissioner — was no accident. It was part of defendants' conspiracy to manipulate the Commission for political reasons. 184. Prosecutors told the media that the SAO purposefully waited until after Spence -Jones was elected to arrest Spence -Jones. 185. Defendants' plan was (i) to remove Spence -Jones from the Commission; (ii) to remove Spence -Jones' ally and another Regalado opponent, Commissioner Angel Gonzalez, from the Commission; (iii) the remaining Commissioners aligned with Regalado would appoint Richard Dunn, a Regalado ally, as Commissioner to fill Spence -Jones' seat; and 26 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 32 of 114 (iv) Regalado-allied Commissioners would appoint Wilfredo Gort as Commissioner to fill Angel Gonzalez' seat. This would leave Regalado in total control of the Commission, with Sarnoff (the Chair appointed by Regalado), Dunn, and Gort reflecting three controlling votes of the five - member body. 186. Under Section 12 of the Miami Charter, a "majority of the remaining city commissioners" could fill a vacant Commission seat until the next general or municipal election. 187. As of Spence -Jones' swearing -in on November 12, 2009, the next general or municipal election was November 2, 2010, almost an entire year away. 188. Had Spence -Jones been arrested before the election or her swearing -in, any temporary appointment filled by the Commission would only have been in effect until the November 2009 election and swearing -in, at which time the voters would have elected Spence - Jones again, by an overwhelming margin. 189. Defendants therefore had little reason to arrest Spence -Jones before the election, in September or October 2009. She would have simply re -filled her own seat. 190. By waiting until after the November 2009 election and swearing -in to arrest Spence -Jones, however, defendants could ensure that the temporary appointments by the Regalado-allied Commission would be in effect for an entire year, until November 2010, 191. Absent Spence -Jones and Gonzalez, the "majority of the remaining city commissioners" would have been controlled by Regalado and his allies. A Snag: No Quorum to Replace Spence -Jones; a Ten -Day Deadline Expires 192. Defendants' nefarious scheme almost worked. 193. As noted, on November 12, the SAO Defendants arrested Spence -Jones after she was sworn in, and on November 13, Crist suspended her. 27 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 33 of 114 194. Also on November 13, Rundle announced the charges against Commissioner Gonzalez. As part of the express teiiiis of a plea deal with the SAO, Commissioner Gonzalez (i) resigned from office, effective November 16; (ii) agreed not to be a candidate in any special election to fill his own vacant seat; and (iii) agreed not to be a candidate for any county, state, or municipal office "through the close of the year 2010." 195. Thus, as of November 13, 2009, defendants successfully removed both Spence -Jones and Gonzalez from office, leaving Commissioners Frank Carollo and Marc Samoff. 196. Defendants' plan, however, hit a snag. At the time of Spence -Jones' removal and Gonzalez' forced resignation, District 4 remained open, because of the pending run- off election between Francis Suarez and candidate Manuel Reyes. 197. Thus, as of November 13, instead of three sitting commissioners on the Commission, there were only two. 198. Absent a quorum of three, the Commission could not vote at all, much less appoint Regalado's allies to replace Spence -Jones and Gonzalez. 199. In addition, under the Miami Charter, the Commission had only 10 days from Spence -Jones' removal, until November 23, 2009, to appoint a replacement for Spence - Jones. If the 10 days lapsed, the people of District 5 would have another opportunity to vote in a special election for District 5 Commissioner. 200. Even worse from defendants' perspective, the people of District 5 would have another opportunity to votefor Spence -Jones. 201. This political development the lack of a quorum on the Commission due to the run-off in District /1 was of great concern to Rundle and her co-conspirators. 28 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 34 of 114 202. Far from being a disinterested prosecutor, Rundle sought to intervene to fill the empty Commission seats. Rundle Tries to Manipulate the Commission 203. Rundle once again called the City Attorney for the City of Miami, Julie Bru. 204. Rundle had no legitimate reason to call Ms. Bru. 205. Rundle asked Bru to contact Gonzalez and ask him to return temporarily to the Commission on Saturday November 14, 2009, before the effective date of his resignation. 206. Rundle wanted Gonzalez to return temporarily in order to create a three - Commissioner quorum, so that the Commission could appoint Regalado's hand-picked successor to Spence -Jones. 207. Gonzalez refused. 208. Rundle had no legitimate reason to attempt to influence Ms. Bru on a Commission matter, to create a quorum on the Commission, or to help Regalado pick his ally to fill Spence -Jones' seat. Regalado Tries to Manipulate the Commission 209. Having failed to manipulate Gonzalez to return to the Commission despite the plea deal Rundle orchestrated, and having failed to manipulate the composition of the Commission to favor her co-conspirator Regalado, Rundle and Regalado took a second tack as part of their continuing conspiracy to control the City Commission. 210. Regalado summoned Bru to a secret meeting at City Hall, on the weekend of November 14-15, 2009. 211. Such a meeting was unprecedented. 29 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 35 of 114 212. At the meeting were Regalado, Bru, and a City Commissioner. 213. At the meeting, Regalado pressured Bru to disregard the Miami Charter and opine that the Commission, even absent a quorum, could appoint a commissioner to fill Spence -Jones' seat. 214. Bru refused. 215. On November 16, 2009, Bru opined that the Commission could not appoint Spence -Jones' replacement, because two commissioners are not a quorum. 216. On November 17, 2009, Francis Suarez, an ally of Regalado, won the run- off election for Commissioner for District 4. 217. According to published reports, Regalado then allegedly pressured Miami city clerk Priscilla Thompson to expedite the certification results of the Suarez/Reyes runoff so that the winner could be sworn in immediately, creating a three -member quorum to appoint Spence -Jones' replacement before the ten-day deadline, on November 23. Thompson refused. 218. According to published reports, Regalado than pressured Bru again, this time to opine that State Governor Crist could appoint Spence -Jones' replacement on the City Commission. According to published reports, Bru acquiesced this time, but Crist did not appoint a replacement. 219. On November 25, 2009, Suarez was sworn in. 220. As of November 25, the Commission finally had a quorum: Suarez, Sarnoff, and Carollo. 221. But it was too late. The ten-day period under the Miami Charter to appoint Spence -Jones' replacement lapsed on November 23, 2009. The Commission was forced to call a special election to fill Spence -Jones' seat. 30 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 36 of 114 222. On November 25, 2009, the Commission scheduled District 5's special election for January 12, 2010. 223. On November 25, 2009, the Commission also voted to schedule a special election to fill Gonzalez' District 1 seat. Apparently Regalado's plan to appoint Gonzalez' replacement also failed, because, inter alia, a member of the Commission publicly admitted to discussing the replacement with other Commissioners in private, violating Florida's sunshine law, and tainting any potential attempt by the Commission to appoint Gonzalez' replacement. 224. On November 25, 2009, Regalado appointed his ally, Commissioner Sarnoff, to be Chair of the Commission. By tradition, as the ranking member of the Commission, but for her arrest and suspension, Spence -Jones should have been appointed as Chair. The Carey-Shuler Charge: Baseless and Based on Fabricated Evidence 225. How did defendants engineer Spence -Jones' removal in the first place? To manufacture and time this baseless charge to remove Spence -Jones from office on November 13, 2009, the SAO Defendants, inter alia: (i) withheld the single two most important documents in the case —which definitively disproved the baseless grand theft charge —from the chief prosecution witness, Barbara Carey-Shuler; (ii) fabricated evidence in an attempt to manufacture probable cause, by lying to, threatening, and manipulating Carey-Shuler to induce her to give an apparently unknowingly false statement that became the basis for Spence -Jones' arrest; (iii) withheld those same crucial documents from Spence -Jones and her counsel; (iv) affirmatively stated that all relevant documents had been produced to Spence -Jones and actively opposed a public records request seeking access to Carey-Shuler's file boxes containing these two critical 31 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 37 of 114 documents; and (v) filed a knowingly false arrest affidavit that relied on the manufactured, false statement and withheld and concealed exculpatory evidence that disproved the fabricated charge. 226. After the documents were finally revealed and the defendants' Carey- Shuler-related fraud was exposed, Rundle, Scruggs and the SAO Defendants attempted to cover up their own fraud by claiming, falsely and maliciously, that Spence -Jones and her counsel fabricated, forged, and planted these two exonerative documents in the County file. Carey-Shuler Authorizes $50,000 to Karym 227. In September 2004, Dr. Barbara Carey-Shuler was Chairperson of the 13- member Miami -Dade County Commission, which reviews development plans, regulates transportation services and systems, enforces building codes and zoning laws, and manages public health facilities, housing programs and cultural affairs for the unincorporated areas of Miami -Dade County. In effect, she was in charge of a multibillion dollar County budget. One of the County Commission's responsibilities was also to fund and recommend budget allocations for the Metro -Miami Action Plan Trust (MMAP), an urban development agency with its own board. 228. Carey-Shuler and her office received numerous, perhaps hundreds, of budget requests. One proposal came from Karym Ventures, Inc. ("Karym"), a private company founded by Spence -Jones' family, for a neighborhood revitalization project called Cafe Soul. (Spence -Jones had not yet run for City Commissioner.) Cafe Soul was an urban development program to stimulate the economy in the predominately African -American Liberty City area of Miami. It involved a redevelopment of a crack house and had several components: a themed restaurant focusing on southern cuisine, an art gallery, a hair salon and an entertainment space. 32 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 38 of 114 229. Carey-Shuler knew Spence -Jones persona ly and had confidence that Spence -Jones would make Cafe Soul a success. 230. On September 23, 2004, Carey-Shuler recommended that MMAP provide funding for Cafe Soul. As part of a long County Commission session involving dozens of budget allocations, the Commission, at least according to some MMAP staff, apparently recommended, mistakenly, that the funds be directed to two entities partnering with Karym on the project: Timbuktu Marketplace ("Timbuktu") and Osun Village ("Osun"). 23 l . After Spence -Jones informed Carey-Shuler of the mistake, Carey-Shuler took steps to direct the $50,000 to Karym, the entity meant to oversee the development of the Cafe Soul project. 232. Carey-Shuler orally informed the senior contract manager at MMAP, William Simmons, of her intent to direct the $50,000 to Karym. 233. Simmons then drafted a confirmatory letter for Carey-Shuler's review and approval. 234. That original draft was dated January 9, 2005. 235. Carey-Shuler reviewed the draft and made numerous handwritten edits. 236. Carey-Shuler changed the "re" line from "Negotiated Budget Items— Karym Ventures, Inc." to read "Re: Cafe Soul d/b/4/ Karym Ventures, Inc." 237. Carey-Shuler also edited the first paragraph. As drafted by Simmons it read: "This letter serves as clarification of my intent regarding funding allocations to Timbuktu Marketplace, Inc. and Osun Village during budgetary negotiations in September 2004." Carey- Shuler edited the paragraph, adding revisions in her own hand: "This letter serves as clarification 33 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 39 of 114 of my intent regarding the funding allocations of $25,000 to Timbuktu Marketplace, Inc. and $25,000 to Osun's placed in the September 2004 budget" 238. Carey-Shuler also edited the second paragraph. As drafted by Simmons it read: "It was intended for Metro -Miami Action Plan Trust to release funding allocated for Timbuktu Marketplace, Inc. and Osun Village to Karym Ventures Inc. Karym Ventures Inc. is the company overseeing the development of Cafe Soul a commercial development project that includes Timbuktu Marketplace, and is part of the overall Osun's Village project." Carey-Shuler edited the paragraph, adding revisions in her own hand: "The Metro -Miami Action Plan Trust should release the $50, 000 to Karym Ventures Inc., the company overseeing the development of Cafe Soul a commercial development project that includes Timbuktu Marketplace, as a portion of the overall Osun Village Project (See attachments)." (Emphasis added). 239. Carey-Shuler's draft was faxed on February 11, 2005, likely as a fax between Carey-Shuler's home office and her County Commission office. 240. Carey-Shuler's edits were incorporated into a draft on Carey-Shuler's letterhead dated February 15, 2005. 241. Carey-Shuler then made further handwritten edits to the February 15, 2005 letter. She fixed a few typos and wrote a note on top: "It is Karym or Karyn?" 242. These two drafts, in Carey-Shuler's own handwriting, made clear her intent to direct $50,000 to Karym. 243. These two drafts, with Carey-Shuler's handwritten edits, were in a thin file in her records labeled "Cafe Soul." 244. On February 15, 2005, Carey-Shuler directed the final version of the letter to be signed and sent to MMAP, and directed MMAP to provide the $50,000 to Karym. 34 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 40 of 114 245. On February 16, 2005, MMAP's independent board voted 10-1 to spend $50,000 in MMAP funds to Karym. 246. Karym used that money to develop Cafe Soul. The SAO Defendants Hide the Evidence from Carey-Shuler 247. No later than September 18, 2009, by Scruggs' own admission, the SAO had possession of all of Carey-Shuler's files, including the Cafe Soul file. 248. One of the files was labeled, simply, "Cafe Soul 2005." 249. The clearly -labeled "Cafe Soul" file was approximately 31 pages. 250. The Cafe Soul file was not empty. 251. Rather, it contained the drafts of the letter with Carey-Shuler's handwritten edits and the final signed letter, directing $50,000 to be paid to Karym. 252. The SAO Defendants therefore had both Carey-Shuler's final signed letter and her two drafts with extensive handwritten edits prior to taking a sworn statement of Carey- Shuler on September 18, 2009. 253. By September 18, 2009, Scruggs and Fielder knew or should have known that Carey-Shuler had directed MMAP to release $50,000 in funding to Karym. 254, By September 18, 2009, Scruggs and Fielder also knew or should have known that MMAP itself voted to give $50,000 to Karym. 255. Not to be deterred by the truth, the SAO Defendants embarked on a nefarious scheme to fabricate false evidence implicating Spence -Jones and bring false charges based on the fabricated evidence. 256. Specifically, the SAO Defendants perpetrated an outlandish and false story in which Carey-Shuler directed funds to Timbuktu Marketplace and Osun Village, Spence -Jones 35 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 41 of 114 forged Carey-Shuler's signature and secretly redirected funds to Karym, and then Spence -Jones stole the money. This absolutely fraudulent, fictional, and shameful story was concocted by the SAO Defendants to charge, arrest, imprison, and destroy Spence -Jones. 257. How did the SAO Defendants pursue this scheme? On September 10, 2009, Scruggs and Fielder met with Carey-Shuler and her attorney. 258. First, Scruggs threatened Carey-Shuler. Scruggs accused Carey-Shuler of receiving cash payments in return for her support for development deals on the County Commission. This was no idle threat, as Scruggs and the SAO already had a history of targeting Carey-Shuler for prosecution. 259. Having accused Carey-Shuler of receiving bribes and being a criminal, Scruggs then outright lied to Carey-Shuler. Scruggs falsely and maliciously told Carey-Shuler that Spence -Jones had gone to Las Vegas with Rev. Gaston Smith, and stole and misspent funds meant for a separate charity. Scruggs also falsely and maliciously told Carey-Shuler that Spence -Jones had simply stolen the County/MMAP money meant for the Cafe Soul project. 260. In questioning Carey-Shuler, it became clear that Carey-Shuler had forgotten about her decisions about the Cafe Soul funding, including her decision to direct the S50,000 to Karym. Such forgetfulness was understandable, because, inter alia, (i) the funding for Cafe Soul was finalized in February 2005, over four and a half years before the SAO questioned her, and (ii) Carey-Shuler oversaw a multi -billion dollar budget and was involved in literally hundreds of budgetary decisions, many of considerably larger magnitude than the tiny Cafe Soul project. 261. Rather than reveal to Carey-Shuler her own handwritten drafts of her letter directing $50,000 to Karym, the SAO Defendants withheld those drafts from Carey-Shuler. 36 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 42 of 114 262. The SAO Defendants simply hid from Carey-Shuler the evidence that she directed payment of S50,000 to Karym. 263. The SAO Defendants then deliberately misled Carey-Shuler into believing that she never authorized the funding allocation to Karym at all. 264. The SAO Defendants knew that if they showed Carey-Shuler the drafts with her own handwriting, their investigation, their story, and their case would be exposed as the fraud that it was. 265. Scruggs even told Carey-Shuler that Spence -Jones had forged Carey- Shuler's name on the official document directing payment to Karym. 266. This statement by Scruggs was deliberately and maliciously false. 267. By threatening, lying to, and misleading the chief prosecution witness, and withholding the key pieces of exculpatory evidence, the SAO Defendants induced Carey-Shuler to make a sworn statement on September 18, 2009, falsely implicating Spence -Jones in a scheme to take County money improperly, without her authorization. 268. In a further effort to hide and advance this corrupt scheme, Scruggs also instructed Carey-Shuler to keep quiet about their meeting. Carey-Shuler's Sworn Statement: More Lies from the SAO 269. Scruggs and Fielder were present for Carey-Shuler's September 18, 2009 sworn statement. 270. During that September 18, 2009 sworn statement, it was Scruggs (whose job was to question, not testify) doing much of the testifying. For many pages, Carey-Shuler the "witness" under oath asked the questions, while Scruggs the "questioner" answered them. 37 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 43 of 114 271. Scruggs' testimony was misleading at best. 272. It was Scruggs who "showed [Carey-Shuler] how the money had been redirected" (allegedly by Spence -Jones and her forgery), Scruggs who said that Spence -Jones was programming monies to go to Karym, and Scruggs who suggested there was "something wrong" with Carey-Shuler's letterhead in the February 15, 2005 letter authorizing payment to Karym. 273. Scruggs also told Carey-Shuler during her sworn statement that Spence - Jones "went to Timbuktu Marketplace and . . there were dealings there which ended up tricking Mr. Weeks and Osun Village." This too was false and was said for the purpose of causing Carey-Shuler to make a false inculpatory statement. 274. At no point did Fielder correct any of Scruggs' false statements, and at no point did Scruggs or Fielder reveal the handwritten drafts to Carey-Shuler, reveal that Spence - Jones did not forge Carey-Shuler's signature, or reveal that Carey-Shuler had actually authorized payment of $50,000 to Karym. 275. Barbara Carey-Shuler's false statement, however unknowing, became the basis for the prosecution. It was a product of the SAO's deliberate withholding of documents and fraud. The False Fielder Arrest Affidavit 276. Prior to November 2009, Scruggs personally reviewed the Cafe Soul file. 277. Prior to November 2009, Fielder personally reviewed the Cafe Soul file. 278. Prior to November 2009, Scruggs and Fielder knew, and Rundle knew or should have known, that Carey-Shuler had directed $50,000 to Karym. 38 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 44 of 114 279. Prior to November 2009, Scruggs, Fielder, and Rundle knew or should have known that MMAP had itself voted to give $50,000 to Karym. 280. On November 12, 2009, Fielder filed a knowingly false arrest affidavit in order to arrest, detain, and imprison Spence -Jones. 281. Scruggs reviewed and approved Fielder's affidavit. 282. On information and belief, Rundle reviewed and approved Fielder's affidavit. 283. Fielder's affidavit relied largely on Carey-Shuler's sworn statement, itself generated by the SAO's fraud and deliberate withholding of evidence. 284. Fielder's affidavit affirmed that on February 15, 2005, MMAP received a letter which "purported" to be, but was not, from Carey-Shuler. 285. Fielder attached to his affidavit the allegedly forged February 15, 2005 letter from Carey-Shuler. 286. Fielderfiti/ed to attach the drafts of that letter in Carey-Shuler's own handwriting directing the $50,000 to Karym. 287. Fielder failed to attach the MMAP ballot or any document reflecting MMAP's own vote to give $50,000 to Karym. 288. Fielder's affidavit failed to reveal that Carey-Shuler actually did approve $50,000 in funding to Karym. 289. Fielder's affidavit also failed to reveal that MMAP approved $50,000 in funding to Karym. 290. Fielder and Scruggs knew, and Rundle knew or should have known, that the Fielder affidavit was false and relied on fabricated evidence. 39 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 45 of 114 291. As a result of the false affidavit, a warrant was issued for Spence -Jones' arrest, and the SAO Defendants seized, detained, arrested, and imprisoned Spence -Jones. The SAO's False Carey-Shuler Information 292. On December 2, 2009, weeks after Crist suspended Spence -Jones from office, Rundle and Scruggs filed a sworn Infolination charging Spence -Jones with one count of grand theft, in violation of section 812.014(2)(b), Florida Statutes. Scruggs falsely swore to the truth of the Information on December 2. 293. The Information falsely charged that Spence -Jones "knowingly, unlawfully and feloniously obtain or use or did endeavor to obtain or use FUNDS, valued at twenty thousand dollars ($20,000.00) or more but less than one hundred thousand dollars ($100,000.00), the property of MIAMI-DADE COUNTY," between September 2004 and September 2005. 294. Scruggs signed the Information charging Spence -Jones with grand theft, and falsely swore that the allegations in the Information were "based on facts which have been sworn to as true by a material witness or witnesses, and which if true, would constitute the offenses therein changes, and that this prosecution is instituted in good faith." Again, Rundle, Scruggs, and Fielder concealed that Carey-Shuler approved the $50,000 payment to Karym, concealed Carey-Shuler's handwritten drafts, concealed that MMAP itself approved the $50,000 payment to Karym, and instead relied on the false Carey-Shuler statement manufactured and induced by themselves. 40 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 46 of 114 The SAO Defendants Attempt to Hide the Evidence from Spence -Jones 295. Compounding their fraud, the SAO Defendants refused to reveal or turn over the exculpatory draft letters to the defense. 296. To the contrary, Scruggs informed Spence -Jones' defense counsel, Peter Raben, that the SAO reviewed all 52 boxes of Carey-Shuler's files and determined that only 9 boxes of documents were relevant to the Carey-Shuler case. 297. Scruggs and the SAO bate -stamped and produced for inspection only those 9 boxes. 298. The 9 boxes Scruggs produced did not include the Cafe Soul file. 299. The 9 boxes Scruggs produced did not contain Carey-Shuler's handwritten drafts of the February 15th letter, directing $50,000 to Karym. 300. Scruggs and Fielder knew that the 9 boxes did not include the most important file in all of Carey-Shuler's files the very documents disproving SAO Defendants' fraudulent case. 301. The SAO Defendants also refused to turn over Carey-Shuler's remaining boxes or the Cafe Soul file to members of the public who sought these documents pursuant to Florida's Public Records Act. In response to such requests, the SAO only produced 4 boxes of documents, not including the Cafe Soul file. 302. The SAO Defendants did not produce the Cafe Soul file to the defense. Spence -Jones is Re -Elected; Crist Suspends Her Again (Suspension #2) 303. As noted above, because the 10-day period to appoint Spence -Jones' replacement lapsed on November 23, 2009, the Commission was forced to call a special election to fill Spence -Jones' seat. 41 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 47 of 114 304. The Commission scheduled a special election for January 12, 2010 to fill both the temporary vacancy created by Spence -Jones' suspension and the permanent vacancy created by Gonzalez' resignation. 305. To defendants' horror, and notwithstanding her arrest, Spence -Jones ran again for office to re -fill her own seat. 306. On December 19, 2009. Governor Crist threatened that, if Spence -Jones won the special election, he would disregard the will of the voters again, suspend Spence -Jones again, and require yet another special election. 307. In anticipation of the special election, on January 4, 2010, Spence -Jones filed suit against Governor Crist in the Circuit Court of the Eleventh Judicial Circuit in Dade County, Florida ("the ACLU case"). 308. The ACLU case sought, inter alia, to enjoin Crist from suspending Spence -Jones for the second time if she were re-elected on January 12. 309. On January 12, 2010, Spence -Jones indeed won the special election for District 5. 310. Spence -Jones won by a 53% majority vote in a race with nine candidates. 311. On January 12, 2010, Regalado's ally, Wilfredo Gort, won the special election for Angel Gonzalez' seat, in District 1. 312, On January 14, 2010, two days after Spence -Jones won the special election, Crist issued Executive Order 10-05, suspending Spence -Jones upon her assumption of office for the second time. 313. Crist's Executive Order specifically cited, relied upon, and attached the false Rundle/Scruggs Information. 42 Submitted into the public record in connection with items D13 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 48 of 114 314. Crist's January 14, 2010 Executive Order also prohibited Spence -Jones "from performing any official act, duty, or function of public office; from receiving any pay or allowance; and from being entitled to any of the emoluments or privileges of public office during the period of this suspension; which period shall be from today, until a further Executive Order is issued, or as otherwise provided by law." 315. The Executive Order was effective upon Spence -Jones' assumption of office. 316. Spence -Jones was to hold office beginning January 16, 2010, after the City Clerk completed the vote canvas and transmitted the official results. 317, Thus, Spence -Jones was suspended, for the second time, effective January 16, 2010. A Second Race Against Time; District 5 Loses Its Vote Again; "Magic City" For Regalado 318. Once again, defendants faced a ten-day deadline under the City Charter — until January 26, 2010 for the Commission to appoint Spence -Jones' replacement, or face another special election in District 5 (which Spence -Jones almost undoubtedly would have won). 319. This time, however, defendants had a quorum in the Commission, of four votes. 320. On January 19, 2010, Gort was sworn in as a commissioner. 321. On January 26, 2010, the Commission held a "Special Meeting" attended, inter alia, by Commissioners Sarnoff, Carollo, Gort, and Suarez, and by Mayor Regalado. 322. This was the tenth day after Spence -Jones' suspension. To prevent District 5 from voting in another special election, the Commission had to appoint Spence -Jones' replacement no later than midnight. 43 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 49 of 114 323. Regalado was extremely eager to get the appointment done by midnight, avoid an election, and prevent Spence -Jones from returning to the Commission. 324. Regalado began by addressing the Commission: "[T]he only thing that I'm asking you guys is to do everything before midnight, because as you know, today is the deadline for the appointment of the person." (Emphasis added.) 325. Regalado continued: "It's been too long without anyone representing the district, so hopefully, today we will do the right thing for the people of District 5. . . . We'll be here listening and participating and hoping that we can have resolution before midnight, because if not, we have to go to the other process that the City charter calls for." (Emphasis added.) 326. The "other process" is an election, by voters of District 5, for their Commissioner. 327. The "other process," voting, had led to Spence -Jones' election twice, in November 2009, and in January 2010. 328. After a discussion among the Commissioners as to the propriety of appointing a Commissioner instead of permitting voters to choose their own commissioner, the Commission entertained applications from various candidates, then comments from thc public concerning who should replace Spence -Jones. 329. Instead, in an outpouring of support for Spence -Jones, many citizens implored the Commission to respect the will of the voters, and decried the entire appointment process. For example, Lavern Elie -Scott stated: "On January 12 the people of District 5 voted. Over 2,000 voters made a choice to vote for whoever they chose. I feel like it was a slap in the face to our community, which I said is already a hopeless one. This is a democratic society, and as a democratic society, I feel that we should not be ruled as a dictatorship. So I am asking for a 44 Submitted into the public record in connection with items D1.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 50 of 114 special election." Muriel Walker said: "we need Michelle. . . we would like to have Michelle Spence -Jones back." "Evangelist Queen Davis" said: "I want Commissioner Spence -Jones back in her seat." Delores Smelling said: "I feel like if we had our right to vote — we voted twice. It shouldn't [have] been no twice." Haneef Hamidullah said: "Out of all I heard today, the person — the people [] that got the rawest deal . . was the constituents." Others made similar comments. 330. The Commission then voted, ultimately appointing Richard Dunn to replace Spence -Jones. 331. Regalado, apparently fulfilling his promise to "be here listening and participating and hoping that we can have resolution before midnight," could not contain his euphoria. 332. Following the appointment, Regalado again addressed the Commission that night. This time, he sat behind the dais of the Commission, as if he were a Commissioner. In fact, Regalado sat in Spence -Jones' own seat. 333. Having engineered Spence -Jones' removal and replacement with his own Commissioner, and now literally occupying Spence -Jones' own chair, Regalado told thc Commission: "I am so proud of you, . You understand the right thing to do. You understand deadlines." (Emphasis added.) 334. Regalado then noted that he himself had previously nominated Commissioner Dunn. 335. Regalado then stated, addressing Dunn: "[N]ow with your leadership, we will be able to move forward and you'll be part of the hard decisions, and hopefully, those hard decisions will be 5 to O. We have come into the era of 5-0 and not 3-2 or 4-1 in the City of 45 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 51 of 114 Miami Commission. It's working together for the Magic City. Thank you, guys. Thank you, Richard. Thank you very much. Thank you, you all, for being here." 336. The Commission adjourned at 11:18 p.m., 42 minutes before Regalado's "deadline," 42 minutes before the voters of District 5 would have had the right to elect their own Commissioner. 337. Regalado's victory was complete. Through the dogged intervention of the SAO Defendants, the fraudulent investigation, arrest, detention, imprisonment, and Infoiniation, Regalado had finally swept Spence -Jones off the Commission once and for all. Spence -Jones and Her Constituents Sue to Regain the Commission Seat 338. Or so defendants thought. On January 26, 2010, Spence -Jones filed a five -count amended complaint, alleging, inter alia, that Crist's second suspension violated the Florida Constitution. 339. The American Civil Liberties Union intervened in the Spence -Jones case, seeking a permanent injunction against Spence -Jones' suspension. 340. The ACLU was joined by five City of Miami District 5 voters who voted for Spence -Jones in the January 12, 2010 special election, as intervenor -plaintiffs. 341. On February 26, 2010, Miami -Dade Circuit Judge Victoria Platzer held a conference. 342. At the conference, Judge Platzer delivered shocking news to defendants: they would almost surely lose the ACLU case, and Spence -Jones would have to be reinstated to the Commission. 343. Judge Platzer stated: "I don't believe the Governor is permitted .. . to have suspended [Spence -Jones,_ because I believe that the provision requires an indictment. . . [A]n 46 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 52 of 114 indictment is different than an information, and she was not charged. She was charged by infolination and she was not indicted, or an indictment was not returned against her." 344. Judge Platzer stated she would rule "within . . . ten days. And if I can do it sooner, I will." A Third Race Against Time; the SAO Indicts; Crist Suspends Spence -Jones Again (Suspension #3) 345. Suddenly, defendants were faced, again, with a race against time. Notwithstanding their repeated, fraudulent manipulation of the political process, defendants faced the prospect of Spence -Jones' imminent return to the Commission. 346. As a result, defendants conspired, yet again, to trump up fraudulent charges against Spence -Jones. 347. Defendants' first plan was to sidestep Judge Platzer's imminent ruling, by charging Spence -Jones by Indictment instead of Information. 348. The SAO Defendants did not even hide the true goal and intent of the Indictment: to keep Spence -Jones off the Commission. 349. For example, SAO prosecutor Joseph Centorino, chief of the SAO's public corruption unit, told an attorney for Spence -Jones that the ACLU lawsuit served no purpose, stating in sum and substance: "It's a waste of time, all we have to do is indict." 350. Scruggs flatly told a prosecution witness that the SAO would indict Spence -Jones to keep her off the Commission. 351. Given that there was already an Information, indicting Spence -Jones served no prosecutorial purpose; it did not advance the criminal case. 352. The sole purpose of the Indictment was to aid Regalado by ensuring that his political opponent remained off the Miami City Commission. 47 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 53 of 114 353. There was nothing legitimate about the SAO's Indictment: it was a naked, overt, and blatant attempt to manipulate the political process in the City of Miami. 354. Indicting Spence -Jones on a mere grand theft charge was also highly unusual. 355. Asked about the purpose of indicting Spence -Jones, Rundle stated publicly: "It just seemed logical to go ahead and get an indictment by a grand jury." The only "logical" reason, however, was to keep Spence -Jones off the Commission. 356. On March 3, 2010, at the SAO's request, a grand jury returned an Indictment in the Carey-Shuler case, for grand theft, conveniently replacing the November 2, 2009 Information. The Indictment was based on the same fraud and improper withholding of evidence as the arrest affidavit and the Inforniation, 357. This Indictment was a mere five days after Judge Platzer presaged that Spence -Jones would be permitted to return to the Commission absent an Indictment, and five days before Judge Platzer's end date for a formal ruling. 358. The day after the Indictment, Crist issued a third executive order concerning Spence -Jones. 359. Executive Order 10-61, filed March 4, 2010, purported to "amend[]" Executive Order 10-05 to "reflect that the suspension of Michelle Spence -Jones . . . is further supported" by the Indictment. 360. In subsequent briefing in the ACLU case, Crist's counsel argued that the Indictment rendered the ACLU case "moot." The Governor argued that "the voters [in the January 2010 special election] could not have reviewed [Spence -Jones] suspension due to the indictment where [Spence -Jones] had previously been charged by information." 48 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 54 of 114 361. Defendants' scheme succeeded. On April 5, 2010, in light of the intervening Indictment, Judge Platzer dismissed the ACLU case as moot, and did not reinstate Spence -Jones to the Commission. 362. Defendants finally appeared to have achieved their goal: removing Spence -Jones from the Commission, permanently. The Codina Case: Another Case, Another Fraud 363. Realizing, however, that the Shuler case was based on their own deliberate fraud, the SAO Defendants this time sought an insurance policy, bringing an entirely separate Indictment against Spence -Jones on March 3, 2010 ("the Codina case"). 364. The Codina Indictment was again conveniently timed just five days after Judge Platzer presaged that Spence -Jones would return to the Commission absent an Indictment, and five days before Judge Platzer's end date for a formal ruling. Indeed, the SAO Defendants only decided to charge and indict Spence -Jones in the Codina case days before the March 3, 2010 Indictment, precisely when it was clear Spence -Jones would shortly regain her Commission seat. 365. The very day that Spence -Jones won the special election, January 12, 2010, the SAO Defendants met with Armando Codina, to concoct a separate baseless claim against Spence -Jones. 366. Just as in the Carey-Shuler case, Rundle, Scruggs and Fielder knew that there was no probable cause to charge Spence -Jones in the Codina case. 367. Like the Carey-Shuler case, however, the Codina case was from the beginning based on a deliberate fraud and series of fabrications and attempts to manufacture non- existent probable cause by the SAO Defendants. 49 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 55 of 114 The Renaming of Southeast Second Ave. 368. The Codina case allegedly stemmed from events that occurred in the spring of 2006. 369. Armando Codina is a prominent developer in Miami and a generous philanthropist. 370. In March 2006, the developers of an office and hotel complex in downtown Miami sought a change to the name of the street address for their proposed complex to aid in marketing. They sought to change the name from "Southeast Second Ave." to Brickell Ave. On infoiluation and belief, Codina did not own any property on the street whose name might be changed. 371. On March 23, 2006, the Miami City Commission met about a number of matters, including the name change. 372. The street was in Commissioner Johnny Winton's District. 373. Accordingly, Commissioner Winton was seen as the key vote on this proposal. On a vote that had little City-wide impact, such as this one, the other Cornmissioners generally deferred to the view of Commissioner whose district was directly affected, and almost always voted unanimously. 374. On this trivial issue of no relevance to her District and minimal relevance to the City, Spence -Jones intended to defer to Commissioner Winton's view of the Brickell Ave proposal. 375. At the March 23, 2006 Commission meeting, Spence -Jones told Commissioner Winton on the record that she "concur[red] with" him and "would definitely .. . defer to you [Winton] on this item [the street renaming]." 50 Submitted into the public record in connection with items D1.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 56 of 114 376. Because Commissioner Winton was not prepared to vote on the Brickell Ave proposal on March 23rd, it was postponed to a future meeting and the Commissioners did not vote on the matter. 377. On March 29, 2006, City Attorney Rafael Rivas -Suarez opined that the City Commission did not even have jurisdiction to change the name of a state road. 378. The Commission never voted on the street naming issue. A City of Miami Benefit in the Lyric Theater 379. Months before March 2006, the City of Miami had planned a benefit in the Lyric Theater in honor of Barbara Carey-Shuler, who had retired from the Miami -Dade County Commission. The event was scheduled for April 3, 2006. Two Commissioners City Commissioner Spence -Jones and County Commissioner Audrey Edmonson—were tasked to host the event in her honor, and to benefit a charity called the Friends of MLK. Friends of MLK was a charity whose mission was to advance the vision and goals of the Rev. Martin Luther King, and a co-sponsor of the event. 380. Spence -Jones' office undertook the fundraising for this official City of Miami benefit. Her staff invited dozens of people to the benefit, including prominent philanthropists, community leaders and business persons. 381. Codina had previously donated moneys to a charity that Spence -Jones was involved in, and he was known as a businessperson who prided himself in giving back to the community. 382. Codina had also been dear friends with Carey-Shuler's late -husband, and knew Carey-Shuler for some 15 to 20 years. 51 Submitted into the public record in connection with items 013 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 57 of 114 383. Codina was also on the board of Burger King, one of the principal sponsors of the benefit. 384. An assistant in Spence -Jones' office contacted a number of people, including Codina, to see whether they would consider contributing to the Friends of MLK charity. At Codina's request, Spence -Jones' office followed -up with an explanatory, March 30, 2006 email describing the charity and the event. The subject of the email was "Reclaim & Build the Dream Reception Honoring Dr. Barbara Carey-Shule[r]." The email stated: "Thanks again for your time and support of the MLK Trust Fund," noted the involvement of the Dade Community Foundation, and referred to a "special reception, to our hometown hero Dr. Barbara Carey-Shuler, for her humanitarian efforts in promoting the dreams of Dr. King as well as addressing the needs of the residents of our great city[.]" 385. During this brief charitable solicitation, the assistant never mentioned the trivial street matter pending before the Commission. The follow-up email also made no mention of the matter. The assistant never promised or even implied any "tit for tat" based on Codina's contribution to the charity. Codina did not speak to Spence -Jones prior to making the donation. 386. The assistant also explained that Friends of MLK was not yet incorporated, and that the charitable donation would be deposited at the Dade Community Foundation, the leading fiscal sponsor for unincorporated non -profits in the Miami -Dade area. The Dade Community Foundation supports budding non -profits in registering with the IRS and complying with its regulations. 387. Spence -Jones' office also informed Codina that Burger King was sponsoring the event. 388. Codina donated $12,500 to the Friends of MLK Trust Fund. 52 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 58 of 114 389. Codina made the charitable contribution, inter alia, because of his dear friendship with Carey-Shuler's late -husband, because Burger King was a sponsor of the event (and Codina was on Burger King's board), because he was a prominent philanthropist, because it was a charitable cause. and because the money would be deposited with and administered by the Dade Community Foundation, one of the most reputable organizations in Miami. 390. On April 3, 2006, the Friends of MLK organization held the City of Miami charity function in honor of Carey-Shuler at the Lyric Theatre. It was an enormous success. 391. Checks for the charity, including Codina's check, were deposited with the Dade Community Foundation. 392. There was nothing secret about the Codina Group's charitable contribution: the Codina Group, Burger King, and others were publicly recognized as sponsors at the benefit. 393. The SAO Defendants, however, saw in this publicly -recognized charitable contribution by a prominent philanthropist and friend of the honoree an opportunity to concoct yet another fraudulent investigation and charge against Spence -Jones. The SAO Defendants Intimidate and Falsely Accuse Codina 394. This time, the SAO Defendants fabricated evidence in an effort to claim that the $12,500 Codina donated to a charity was actually a bribe to influence Spence -Jones' non-existent vote to change the name of a street in someone else's district. 395. On or about January 6, 2010, Fielder called Codina on the phone while he was driving with his wife on highway [-95. 53 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 59 of 114 396. This was just 6 days before Spence -Jones' special election to the seat she had lost as a result of the SAO's arrest. 397. Fielder told Codina: "We have you on tape on a bribery case." 398. That was a deliberate and malicious falsehood, intended to intimidate and manipulate Codina in order to persuade him to implicate Spence -Jones in a crime. 399. The SAO did not have any evidence of Codina being involved in a bribe, on tape or otherwise. 400. In that phone call, Fielder also told Codina that Codina had made donations to a "fund controlled by Michelle Spence -Jones." 401. That was a deliberate and malicious falsehood: Spence -Jones did not control any fund to which Codina donated. 402. Codina said that he "better get a lawyer," and Fielder agreed, stating "We've got an issue here." 403. Knowing there was no bribe, no wrongdoing, and not even a Commission vote, Scruggs and Fielder concocted an alternate reality in order to induce Codina to implicate Spence -Jones in a crime. 404. Just as they had in the Carey-Shuler case, the SAO Defendants lied to, manipulated, and withheld evidence from the chief prosecution witness, this time Codina, in an effort to manufacture probable cause to arrest and then charge Spence -Jones. The SAO Defendants Lie to and Manipulate Codina 405. On January 12, 2010, the very day of Spence -Jones' special election, Scruggs and Fielder met with Codina and his counsel. 406. That same day, Spence -Jones won the special election in District 5. 54 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 60 of 114 407. Scruggs and Fielder falsely told Codina that the solicitation of Codina was for a fake, non -legitimate charity run and controlled by Spence -Jones, and that Spence -Jones used the charity money as her personal piggybank. 408. Scruggs and Fielder also falsely told Codina that the charitable benefit had simply never occurred. 409. In short, Scruggs told Codina and Codina's lawyer "in no uncertain[] terms that no event had taken place at the Lyric Theater, that the charity was a sham, and that Michelle Spence -Jones had used the money as her own piggy bank." 410. Scruggs and/or Fielder also stated that Spence -Jones was a thief and she could not help herself from stealing. They said Spence -Jones was a "mouse to cheese." 411. Each and every one of the statements in the preceding four paragraphs was a deliberate and malicious falsehood. 412. Before January 12, 2010, Scruggs and Fielder knew that there had been a charitable event. 413. Before January 12, 2010, Scruggs and Fielder knew that Codina's check had been deposited at the Dade Community Foundation. 414. Before January 12, 2010, Scruggs and Fielder knew that Spence -Jones never stole any of Codina's charitable contribution, much less used the account as her own "piggybank." 415. On January 12, 2010, the very day of the special election in District 5, Scruggs flatly told Codina that if Spence -Jones were re-elected, the SAO would indict her again. 55 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 61 of 114 Codina Is Duped, by the SAO 416. Codina believed defendants' lies. As a result, he was "distraught," and convinced that Spence -Jones victimized him and stole his money. 417. Codina believed he had been defrauded by Spence -Jones, "based upon the statements that were made to [him] by Mr. Scruggs" when they met. 418. Because of the SAO Defendants' lies, Codina believed "that there had not been an event, that the charity was a fake, and [Codina's] money had been pocketed by Michelle Spence -Jones." 419. In short, because of the SAO Defendants' lies, Codina believed he was a victim of theft by Spence -Jones. 420. Codina left the SAO meeting "ashamed and embarrassed. I thought Ms. Spence -Jones had duped me. And I was ashamed and intimidated at the state attorneys office knowing all of that that I gave the check anyway." 421. The SAO Defendants well knew that their fabricated story could be exposed if Codina did his own, independent investigation into the check, the Friends of MLK, and the event at the Lyric Theater. 422. As a result, and in a further effort to hide and advance their corrupt scheme, Scruggs instructed Codina "not to talk to anyone else or make any comments" about the Spence -Jones case, including what the SAO Defendants had falsely told Codina. 423. Because Codina was defrauded and misled by Scruggs and Fielder, he became a witness for the prosecution. 56 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 62 of 114 424. On March 1, 2010, three days after Miami -Dade Circuit Judge Victoria Platzer presaged Spence -Jones' return to the Commission absent an Indictment, the SAO had a sudden, alleged change in policy concerning indictments. 425. As Scruggs wrote Codina's lawyer in an email on March 1, 2010: "The SAO may be changing policy now to put public corruption cases involving elected officials before grand juries for indictment." 426. The only reason for the SAO Defendants' sudden, alleged "chang[e]" in "policy" was to circumvent the imminent ruling of a Miami -Dade Circuit Judge, indict Spence - Jones, and keep Spence -Jones off the Commission. 427. On March 2, 2010, Scruggs and Fielder again attempted to intimidate Codina. Scruggs threatened Codina with criminal prosecution, warning him that he was "in jeopardy" because he bribed a public official. Ultimately Codina was not charged because, Fielder claimed, the prosecutor decided Spence -Jones was "the higher target." 428. The SAO never charged Codina with bribing or attempting to bribe a public official, even though Codina was the alleged briber. 429. On March 2, 2010, four days after the conference before Judge Platzer, and as a result of Scruggs' and Fielder's outright lies, fabrications, and threats, Codina provided a sworn statement to aid the prosecution, via an interstate telephone call. The Indictment was largely based on Codina's testimony. 430. In his statement. Codina referred to the charity as a "fake charity" that Scruggs said was being "run out of her [Spence -Jones] office." 431. Codina also stated that he saw Commissioner Winton, and not Spence - Jones, as the pivotal vote in the Brickell Ave extension; Spence -Jones' assistant never made any 57 Submitted into the public record in connection with items D1.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 63 of 114 mention of the matter pending before the Commission; and Codina decided to donate $12,500 because it was a contribution to a good cause and he did not think there was "anything improper with the request." 432. Fielder later admitted that not one witness claimed that Spence -Jones solicited a donation with the intent of having her vote influenced. 433. On March 3, 2010, five days after the conference before Judge Platzer, days after the SAO Defendants decided to seek an Indictment, two days after the SAO's sudden "changing policy," and the day after Codina's statement, the grand jury indicted Spence -Jones. This Indictment was, again, a product of the SAO Defendants' lies, withholding of evidence, and manipulation of Codina. Defendants Defame, Arrest, andAttempt to Humiliate Spence -Jones 434. Also on March 3, 2010, Rundle issued a press release claiming falsely — that the money Spence -Jones' assistant solicited from Codina was "ultimately deposited . . . into an account accessible to Commissioner Michelle Spence -Jones." 435. This was false and defamatory. The Dade Community Foundation account was not accessible to Spence -Jones. To this day, as authorized by Rundle, the false, defamatory March 3, 2010 press release remains published on the SAO's official website, available to anyone in Florida, the United States, or anywhere in the world with access to the Internet. 436. On information and belief, on March 3, 2010, Rundle told the South Florida Business Journal that Spence -Jones "solicited" a "bribe" from Codina. 437. The South Florida Business Journal published the statement on March 3, 2010. 58 Submitted into the public record in connection with items 01.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 64 of 114 438. This statement was a deliberate and malicious falsehood. 439. Spence -Jones did not solicit any bribe from Codina. 440. Shortly after the Indictment, Codina the supposed briber and the chief prosecution witness released a public statement: "Armando Codina responded to a request from Michelle Spence -Jones to contribute to an event honoring County Commissioner Barbara Carey Shuler. That was the only purpose of the donation. He was faxed an invitation that showed the event was being sponsored by the friends of MLK (Martin Luther King) and many other respected entities, including Burger King, on whose Board he sat. He was told the funds were going to be administered by the Dade Community Foundation, an[] organization which he deeply respects. There was no expectation of a favorable vote from Commissioner Spence - Jones, and he would have made this contribution whether there was something pending or not." 441. Notwithstanding this public statement from the chief prosecution witness debunking the so-called "bribery" case, the SAO Defendants continued to press the case against Spence -Jones. 442. On March 30, 2010, Spence -Jones was arraigned. 443. After Spence -Jones' arraignment, Scruggs insisted that Spence -Jones he handcuffed. He knew that Spence -Jones posed no threat, but had her handcuffed nonetheless to further humiliate her. The handcuffing served no prosecutorial purpose, but did allow the media to attempt to take humiliating photographs. 59 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 65 of 114 Scruggs' Personal Vendetta Against Raben; Rundle: "Boys Will Be Boys" 444. Scruggs admitted that his baseless pursuit of Spence -Jones was also based, in part, on a personal vendetta against Spence -Jones' criminal counsel, Peter Raben. 445. Fielder's criminal deposition was scheduled for May 27, 2010. When Raben sought to confirm the deposition time, Scruggs did not respond. In a May 27 telephone call, Raben asked Scruggs why he had not responded. Scruggs said: "I don't have to fucking call you." 446. Raben queried him on his lack of professionalism. 447. Scruggs said: "you made a false accusation against me that caused me a lot of grief in the community." He further stated: "And until I do that to you, and we are even, then I will continue to have a problem with you." 448. On the record at the deposition that day, Raben stated that he did not want to begin Fielder's deposition before resolving whether Scruggs would continue to remain on the case, given his statement that he wanted to "get even" with defense counsel. 449. Scruggs responded to Raben on the record: "What are you upset? Did I hurt your feelings? Do you want to call my mother?" 450. Later that day, Raben wrote to Rundle and relayed Scruggs' unprofessional and irresponsible statements. Raben wrote: "This prosecutor has expressed a vendetta against me. It is an embarrassment and disgrace that he should be allowed to remain in this position." Raben asked that Scruggs be removed from the case. 451. Rundle refused to remove Scruggs from the case. 452. Instead, Rundle told Raben in a subsequent phone call: "boys will be boys." 60 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 66 of 114 Raben Deposes Carey-Shuler; Carey-Shuler Learns She Was Deceived; the SAO Defendants Continue to Pursue the Fraudulent Case 453. Notwithstanding Scruggs' insistence and representation that the nine boxes he produced to Spence -Jones included all Carey-Shuler files relevant to the Shuler case, Raben demanded access to all Carey-Shuler files in the SAO's possession, including 43 boxes the SAO Defendants previously withheld. 454. Raben, Spence -Jones and noted members of the community went to the County warehouse to review the remainder of the Carey-Shuler boxes. 455. As requested by the County, the door to the room in which Raben and others viewed the file was kept open, so the review was visible to County staff. 456. Within less than twenty minutes after reviewing the boxes never produced by Scruggs, Raben and Spence -Jones found a folder clearly labeled "Cafe Soul." 457. In the Cafe Soul file were, among other documents, the two drafts of the February 15, 2005 letter, replete with Carey-Shuler's handwritten edits to the letter authorizing payment of $50,000 to Karym. 458. On June 21, 2010, Raben deposed Carey-Shuler. 459. During her deposition, Raben showed Carey-Shuler the drafts of her February 15" letter to MMAP that Scruggs and Fielder had withheld from Carey-Shuler. 460. Carey-Shuler immediately realized that the handwriting was hers and that she did instruct that MMAP provide funding to Karym. 461. When Carey-Shuler was shown the drafts of her letter, she realized that Scruggs had defrauded her: "he tricked me," she said. 462. Carey-Shuler's testimony dissipated whatever manufactured probable cause (if any) had ever existed to prosecute Spence -Jones. Yet, as set forth below, defendants 61 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd E3'. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 67 of 114 wrongfully and improperly continued the baseless Carey-Shuler prosecution until August 23, 2011, over a year later. Codina Also Learns He Was Deceived; the Extraordinary Codina Deposition; Scruggs Doubles -Down on His Lies 463. Even as the Carey-Shuler case was uncovered as a fraud, the SAO Defendants pressed on with the equally fraudulent Codina case. The SAO's Codina fraud soon began to unravel as well. 464. On November 16, 2010, Scruggs filed a false, sworn Information charging Spence -Jones with Grand Theft in the Third Degree. The SAO added this charge to the pending bribery charge. 465. On information and belief, Rundle reviewed and approved the Information. 466. The Information alleged that Spence -Jones endeavored to use over $10,000 in funds that were the property of the Codina Group from March 23, 2006 to August 2006. Scruggs swore under oath to the factual basis of this baseless charge. 467. The fabricated premise of the new theft charge was that Spence -Jones stole Codina's money, even though Scruggs and Fielder knew, and Rundle knew or should have known, that Spence -Jones did not steal Codina's money or commit any theft. The charge was based on the same lies and manipulation by the SAO Defendants, including that Spence -Jones had stolen Codina's money, and duped Codina into funding a non-existent charity in connection with a non-existent charity event. 468. On February 16, 2011, Scruggs deposed Codina. 469. The Codina deposition was likely one of the most extraordinary in the history of the State of Florida. 62 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 68 of 114 470. Codina testified that, before meeting Scruggs in January 2010, he believed he had "given a charitable contribution for funds to be spent by the Dade Community Foundation at an event . . . in honor of Barbara Carey-Shuler." 471. When Codina met with Scruggs, however, Scruggs told him "there had not been an event." 472. As Codina said to Scruggs during Codina's sworn deposition: "You told me that there had not been an event. You told me that the charity was a fake and that she had used the money as her own piggybank, so I was distraught when I was here. I was convinced that the flier had been a fake, that no event had taken place and that she had pocketed the money." 473. Codina explained, however, that he had since learned that Scruggs had deceived him: "Since that time, I know that there was an event. There was an event that was well attended. . . . It was an event where we were recognized. . . . I found out that my check was deposited at the Dade Community Foundation, so if 1 had known those facts when I was here, I wouldn't have expressed some of the emotions that I expressed at the time." 474. Rather than ask questions, as lawyers usually do at depositions, Scruggs essentially testified on the record, in his own defense. Scruggs admitted that he knew, when he met Codina in January 2010, that there had been a charitable event. Scruggs also admitted that he knew, when he met Codina, that Codina's check had been deposited at the Dade Community Foundation. 475. During Codina's deposition, Scruggs claimed that Codina's clear recollection of their meeting was a simple "misunderstanding." 63 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 69 of 114 476. Codina insisted that there was no misunderstanding: "Mr. Scruggs, you unequivocally told me there had not been an event and that [Spence -Jones] had used the money as a piggybank." (Emphasis added.) 477. Even after Codina learned (independent of the SAO) about the charity event, Scruggs still claimed that the Codina Group had not been "recognized" at the event. 478. This, too, was a false statement. 479. Scruggs later claimed that, unlike his many other lies, this particular falsehood he perpetrated to, inter alia. Codina, was unintentional. 480. This SAO falsehood, however, was quite intentional. In a sworn court filing dated October 6, 2010, which in an October 18, 2010 hearing Scruggs swore to again, Scruggs and his team stated: "Codina never received credit as a sponsor of the Lyric Theater event, even as other contributors did," because Spence -Jones supposedly wanted to hide the alleged Codina "bribe" from the world. But at the court hearing. Raben presented a photo of the poster at the event crediting and recognizing "The Codina Group" as a sponsor, right under "Burger King Corporation." Rather than admit that he outright lied to the Court, Scruggs falsely insinuated that the photo itself was fabricated in 2010, presumably by Raben, and was itself "evidence of falsehood." 481. At Codina's deposition, Scruggs told yet more lies, stating, for example, that Codina's money was under Spence -Jones" "control even at the Dade Community Foundation." 482. This statement was knowingly and maliciously false. 483. None of Codina's money was under Spence -Jones' control. 64 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 70 of 114 484. Scruggs also stated, again, that Spence -Jones "had used the money as her own piggybank.” 485. This statement was also knowingly and maliciously false. 486. Scruggs also stated that "the only person that directed the expenditures of that money [Codina's money] was herself [Spence -Jones]." 487. This statement was also knowingly and maliciously false. 488. To the contrary, the Codina deposit was deposited in the account of the Dade Community Foundation, one of the most respected organizations in the State of Florida. 489. Finally, in an effort to prevent Scruggs from further polluting the record with his own manipulative misstatements, lies, and prevarications, Raben attempted to convert the Codina deposition into an actual deposition: "I want to remind everyone here that the purpose of this deposition is to acquire relevant information of material fact. This is not a summit meeting where there is some sort of detente going on, and I would like to know if we can proceed to the questioning and answers, rather than the mia [sic] culpas for what the State perceives to be inappropriate dissemination of infolination." 490. Notwithstanding this deposition, in which the chief prosecution witness info], ied the prosecutor he was a liar, defendants insisted on pursuing the Codina case through to a criminal trial. The Trial: the Codina Case Is Exposed to the World as a Fraud 491. The Codina trial lasted from February 28, 2011 to March 16, 2011. 492. In the middle of the trial, on March 10, 2011, the Commission voted 3-0 to approve the naming of "Katherine Fernandez Rundle Avenue." 65 Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 71 of 114 493. The SAO Defendants knew the Codina case was hopeless: as one assistant state attorney wrote in an internal email: "If we win this case it will be a miracle of God." 494. During the criminal trial, Codina again testified about Scruggs' deceit. 495. Codina testified that Scruggs told him "in no uncertain[] Willis that no event had taken place at the Lyric Theater, that the charity was a sham, and that Michelle Spence -Jones had used the money as her own piggy bank." 496. Codina explained that he "believed Mr. Scruggs" and was "convinced that there had not been an event, that the charity was a fake, and my money had been pocketed by Michelle Spence -Jones." 497. As a result of the SAO Defendants' lies, Codina was "ashamed [and] thought Ms. Spence -Jones had duped [him]." He felt "intimidated" by the SAO, because "knowing all of that that I gave the check anyway." 498. Codina testified, however, that he ultimately found out that there was a well -attended event at which he was recognized and two of his executives attended. Codina further learned that his check was deposited with the Dade Community Foundation, 499. Codina later told reporters that Scruggs had -purposely misled" him. 500. Codina also testified, at this supposed trial about bribery and grand theft, that there was no bribe and no theft. Codina testified that "it was not a 'tit for tat.' If I thought for a second it had been, I would not have given the check." 501. During the over two -week trial, not a single witness testified that Codina bribed Spence -Jones or that Spence -Jones improperly solicited anyone, 502. There was apparently no line the SAO Defendants were unwilling to cross in their zeal to convict Spence -Jones. For example, even though the SAO Defendants knew full 66 Submitted into the public record in connection with items D1.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 72 of 114 well that the charity event actually occurred, and that Lloyd Boggio, the president of a real estate development company, attended the charity event, they presented testimony by Boggio to the jury indicating that he did not attend the event. On direct -examination, Scruggs asked: "there's been testimony that there was going to be an event at the Lyric Theater on April 3rd that was commemorating Dr. Barbara Carey-Shuler. Absent us talking about this, do you remember that event at all? Does that ring any bells at all in your memory?" Boggio replied, "No." 503. On cross-examination, however, Raben confronted Boggio with photographs of Boggio attending the charity event. Boggio was forced to admit that he did attend the charity benefit for Carey-Shuler. 504. On March 16. 2011, after deliberating for fewer than 90 minutes after an over two -week trial, the jury acquitted Spence -Jones on all counts. Regalado-Rundle's Back -Door Meeting; Machinations to Extend the Carey-Shuler Case 505. After the Codina case collapsed, defendants' only remaining way to keep Spence -Jones off the Commission was the fraudulent Carey-Shuler case, now discredited by Carey-Shuler herself. From its inception, the Shuler case lacked probable cause. The SAO Defendants had the documents disproving their case from the beginning. After Carey-Shuler's deposition on June 21, 2010, it was painfully obvious the case was a sham. 506. Given that Carey-Shuler testified in June 2010 that she authorized the funds, why did the case continue through August 2011? The same reason defendants launched the case in the first instance: to keep Spence -Jones off the Commission for as long as possible. 507. In the summer of 2011, Regalado visited Rundle at the SAO's office. 508. Regalado and Rundle intended the meeting to be secret. 67 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 73 of 114 509. In order to avoid a written, public record of the secret meeting, Regalado was snuck into the SAO building, and did not go through the normal identification process. 510. On information and belief, in this secret, back -door meeting, Regalado and Rundle discussed how they could continue the fraudulent prosecution against Spence -Jones, in order to keep her from regaining her seat on the Commission. 511. Regalado was intent on keeping Spence -Jones off the Commission for multiple reasons. He knew he did not and could not control her vote. Most pressingly, Regalado was intent on firing the Miami Police Commissioner, Miguel Exposito, which ultimately would require a majority vote on the Commission. This was a high -profile political issue in Miami, and Regalado was concerned that Spence -Jones would vote against his decision to fire Exposito. 512. Regalado sought to fire Exposito in retaliation for Exposito's decision to raid more than a dozen locations containing maquinitas, or illegal gambling machines. On information and belief, Regalado was and is a close ally of companies that build, operate, or market these illegal gambling machines, and received large campaign contributions from these companies and business owners. 513. Rundle had her own reasons to ensure that Exposito was fired. In January 2011, he had criticized her for prosecutorial delays in investigating fatal shootings by police officers, 514. In May 2010, he also accused her of dropping a public comiption case against the grandson of civic leader Georgia Ayers, in order to curry favor with Ms. Ayers. 515, As Exposito later described Rundle: "The problem I have with her is that she is very aggressive against certain politicians or government workers, yet with others she 68 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B; Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 74 of 114 takes the soft approach. She gives you all the reasons in the world to not go after them . . think she needs to go." 516. On information and belief, during the summer 2011 meeting, Regalado and Rundle conspired to postpone dismissing the Indictment until at least after the Commission voted on Exposito's removal. 517. In addition, in the Spring/Summer 2011, Regalado stated that Spence - Jones could not return to the Commission, because she was "too vindictive." 518. In or about May 2011, Regalado privately admitted in multiple meetings with high-level staff that he feared Spence -Jones' return to the dais. Regalado stated that Spence -Jones would be difficult to work with, a "hell on wheels." He further stated that the Commission should push through controversial ordinances and resolutions that the Mayor wanted passed, but which Spence -Jones might not support. 519. Defendants knew, though, that the case against Spence -Jones was baseless and had collapsed. No later than early summer 2011, months before the ultimate dismissal, Scruggs had drafted a memo explaining why the SAO could not pursue the Indictment. This memo was called the Closeout Memo. 520. As part of the conspiracy to continue the baseless and fraudulent criminal prosecution, the SAO Defendants nevertheless (i) refused to drop the charge of grand theft, notwithstanding the lack of probable cause or any basis to support the charge; (ii) attempted to compel and coerce Spence -Jones into speaking out in support of theniselves; (iii) attempted to compel and coerce Spence -Jones into falsely incriminating herself; and (iv) through a pattern of deceit and manipulation, extended the prosecution for the maximum possible amount of time, until the threat of an imminent court date finally forced the SAO to drop the sham prosecution. 69 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 75 of 114 521. On July 8, 2011, at Rundle's direction, Scruggs sent an email to Raben demanding that Spence -Jones make certain statements in return for dropping the case. Rundle and Scruggs knew there was no basis to pursue the Carey-Shuler case, and that they had no right to make any demands in return for dismissing a fraudulent case. 522. As a condition of the SAO's decision to drop the fraudulent case, Rundle and Scruggs demanded that Spence -Jones "accept responsibility" for "regrettable" actions. 523. Rundle and Scruggs also demanded Spence -Jones admit there was "probable cause" for a "fair prosecution." 524. Spence -Jones refused to make these false statements. 525. Yet even once the SAO's office agreed to a dismissal, they attempted to delay in order to delay Spence -Jones' return to the Commission until, inter alia, after the Exposito vote. 526. As part of her arrangement with Regalado, Rundle repeatedly sought to delay an August 24, 2011 Court date, so that she could postpone dismissing the case. Spence - Jones' counsel forced her hand, and refused. 527. On August 23, 2011, the day before the August 24 court conference, the SAO Defendants finally filed a nolle prosequi to dismiss the Carey-Shuler case. Rundle/Scruggs Defame Spence -Jones and Raben in an Outrageous "Closeout Memo,' then Send the Defamatory Memo to the Miami Press Corps 528. On August 23, 2011, Rundle also issued a press release. 529. That release attached the Closeout Memo written by Scruggs and approved by Rundle. 530. The release stated that Rundle "believed at the time of the arrest of Michelle Spence -Jones that a crime had been committed" and "[w]e still believe so today." It 70 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 76 of 114 explained that the prosecution was dropping the case because "circumstances developed," and "evidence and testimony . . . change[d] over time." 531. Rundle and Scruggs issued the press release in order to further damage Spence -Jones' reputation, and to cover up their own misconduct. 532. For example, Rundle's spokesman, Ed Griffith, spoke to a member of the press concerning the dismissal of the Carey-Shuler Indictment: when the journalist indicated that it appeared that Spence -Jones was innocent, Griffith offered to provide the Closeout Memo to change his mind. 533. Scruggs drafted the Closeout Memo 534. Rundle reviewed and approved the Closeout Memo. 535. The Closeout Memo served two principal purposes: (i) to defame Spence - Jones, and (ii) to cover up the SAO Defendants' own fraud, deception, withholding of evidence, and conspiracy against Spence -Jones. 536. In the Closeout Memo, Rundle and Scruggs admitted: "Without Dr. Carey-Shuler's cooperative testimony . . . the state does not believe that it can meet its burden of proving the case beyond a reasonable doubt." 537. The SAO Defendants, of course, had this same information on June 21, 2010, the date of Carey-Shuler's deposition, over 14 months before it finally dropped the Indictment. 538. Even more important, the SAO Defendants had the exonerative documents no later than September 18, 2009, before they charged Spence -Jones at all. 539, The Closeout Memo claimed, falsely, that Scruggs only obtained Carey- Shuler's files in October 2009, after she gave her September 18, 2009 sworn statement. 7 1 Submitted into the public record in connection with items 0I.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 77 of 114 540. The Closeout Memo falsely accused Spence -Jones and her counsel of manufacturing evidence. 541. Specifically, the Closeout Memo falsely accused Spence -Jones and her counsel o planting the drafts of the February 15, 2005 letter into Carey-Shuler's file. 542. Rundle and Scruggs claimed that when the prosecutors reviewed the Cafe Soul file, it was "empty." 543. That is a lie. 544. Rundle and Scruggs claimed that the SAO "provid[ed] Ms. Spence Jones and her attorney . . . copies of, all of the documents in its possession." 545. That is a lie. The SAO did not provide Spence -Jones or her counsel copies of 43 boxes in its possession, or copies of the Cafe Soul file. 546. Rundle and Scruggs then claimed that Spence -Jones' defense attorney, Peter Raben, "discovered" documents containing Carey-Shuler's drafts upon review of the file. The Closeout Memo stated that Raben "demanded" that the county record custodian leave the room during the review, citing attorney -client privilege. 547. The Closeout Memo further stated: a "short while later, the two drafts of the Dr. Carey-Shuler letter, along with several other documents relating to the Cafe Soul project, surfaced in the previously empty Cafe Soul file." (Emphasis added). 548. That is a lie. The two drafts of the Carey-Shuler letter, and the other documents, had always been in the Cafe Soul file, including in September -October 2009, when the SAO Defendants reviewed the file, hid the drafts from Carey-Shuler, misled Carey-Shuler, and authorized/filed the false Fielder affidavit that caused Spence -Jones' arrest, detention, and imprisonrnent. 72 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 78 of 114 549. The Closeout Memo stated: "During questioning by Counsel for Ms. Spence -Jones, two 'newly discovered' documents that had never been given to the State, were produced which appeared to be two earlier drafts of the Dr. Carey-Shuler's letter of February 15, 2005." 550. This is a series of lies. The drafts were not "newly discovered"; they had been in the Cafe Soul file all along. 551. The claim that the drafts "had never been given to the State" is also false. To the contrary, the SAO Defendants seized Carey-Shuler's file, including the two drafts, no later than September 18, 2009. It was the SAO Defendants who never produced the drafts to Spence -Jones, Raben, or Carey-Shuler 552. The Closeout Memo referred to "the surprise discovery of the two drafts of the Dr. Carey-Shuler letter." This is a falsehood: the two drafts were not "discovered"; they were already in the SAO's possession. Nor was there any "surprise": the SAO reviewed the Cafe Soul file before November 2009, and therefore knew full well about the existence of the drafts. 553. In short, in the Closeout Memo, Rundle and Scruggs falsely accused Spence -Jones and Raben of planting evidence to obstruct justice. As the Miami New Times reported, "In his close-out memo, Assistant State Attorney Richard Scruggs accuses Spence - Jones and her defense lawyer of evidence tampering." 554. Rundle and Scruggs then published these outrageous, false accusations to the Miami press corps, to employees of the City of Miami, and to the Florida Governor's office, among others, 73 Submitted into the public record in connection with items 01.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 79 of 114 555. Rundle took a keen personal interest in perpetrating the SAO's false story and defaming Spence -Jones and Raben to the world. On August 24, 2011, after the Carey-Shuler case was formally dismissed, Rundle personally emailed the defamatory Closeout Memo to employees of the City of Miami, to the Florida Governor's office, and to members of the public. 556. On August 24, 2011, Raben emailed Rundle: "I wanted to provide you with fair warning that I intend to defend my integrity in response to the explicit and implicit assertions in the publicly disseminated close-out memo that I was a criminal conspirator to planting evidence, suborning perjury and obstructing justice. An immediate and public retraction would be appropriate." 557. Incredibly, Rundle professed surprise at Raben's email, stating, "I must tell you I didn't see what you see with respect to your integrity in reading Mr. Scruggs' close-out memo.... We thought it was just an objective `factual' rendition by Mr. Scruggs." 558. The rendition, however, was neither "objective" nor "factual." It was a litany of falsehoods. 559. Nor was the rendition only by "Mr. Scruggs"; it was by Scruggs and Rundle, together. 560. Neither Rundle nor Scruggs issued a retraction or apology to the media for any aspect of the false, defamatory Closeout Memo. 561. To this day, as authorized by Rundle, the false, defamatory August 23, 2011 press release and Closeout Memo remain published on the SAO's official website, available to anyone in Florida, the United States, or anywhere in the world with access to the Internet. 74 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 80 of 114 Carey-Shuler and Codina Identify the True Source of the Fraud: the SAO 562. After the Carey-Shuler case was dropped, Carey-Shuler's counsel said that had the case gone to trial, she "would have done what Armando Codina did, and said Scruggs lied to her. That's what she would have said on the stand." 563. Carey-Shuler's counsel further stated to the press that the Closeout Memo was false because Scruggs falsely told Carey-Shuler that the official letter was a forgery, not vice versa. Scruggs falsely denied Carey-Shuler's statement, insisting to the reporter that he never told Carey-Shuler the letter authorizing $50,000 to Karym was a forgery. 564. When questioned by the press about the Closeout Memo, Codina described Scruggs as a "serial liar." 565. Rundle claimed to know about a prosecutor's limits in speaking to the press. After Carey-Shuler testified that she had approved the funding for Karym, Rundle refused comment, stating through her spokesperson: it is "improper for us to be discussing such factual case matters that relate directly to the upcoming case." 566. Yet, where expedient for her political goals, or for covering up her own scheme, Rundle did not hesitate to circulate the false and defamatory Closeout Memo to the Miami press corps and to the world. Two Years in the Wilderness: A Public Servant in Ruins 567. As a direct result of defendants' conspiracy, Spence -Jones has been gravely injured. Michelle Spence -Jones was kept out of office for nearly two years, unable to serve her District or the people of Miami. She lost her liberty. She lost her income. She incurred legal fees to defend herself against the baseless prosecutions. Her business and personal reputation was severely damaged. She suffered immense emotional, psychological, and physical 75 Submitted into the public record in connection with items DI.3 on 02-14-13 R Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 81 of 114 distress as a result of this entire ordeal. The incident almost destroyed her life and her family. As a result of what the defendants did, Michelle Spence -Jones lost two years of her life. 568. During those years, and still today, Rundle remains the State Attorney for Miami -Dade County. 569. During those years, and still today, Regalado remains the Mayor of Miami. 570. After both of the prosecution's lead witnesses — Barbara Carey-Shuler and Armando Codina — described Scruggs as a liar who deceived them, and after both cases against Spence -Jones were revealed as a complete and utter sham, Scruggs was removed from the public corruption unit of the SAO and transferred into a different unit. However, Scruggs today remains at the SAO, employed by Rundle, with power to investigate, arrest, imprison, and prosecute. 571. After the criminal cases collapsed, the new Governor of Florida was forced by law to reinstate Spence -Jones as the Commissioner for District 5. Spence -Jones today is a Commissioner again, vulnerable once again to the ongoing conspiracy by Rundle and her co- conspirators to remove Spence -Jones, apparently at any cost. 76 Submitted into the public record in connection with items 0I.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 82 of 114 AS AND FOR A FIRST CLAIM FOR RELIEF 42 U.S.C. § 1983, Fabrication/Concealment of Evidence in Carey-Shuler Case (Against SAO Defendants) 572. Plaintiff repeats and realleges the foregoing as if the same were fully set forth at length herein. 573. Under color of law, Rundle, Scruggs and Fielder, acting individually and in concert, knowingly and intentionally concealed evidence demonstrating that Carey-Shuler had authorized the transfer of $50,000 to Karym, and that MMAP had authorized the transfer of $50,000 to Karym. 574. In knowingly and intentionally concealing such evidence, Rundle and Scruggs (and of course, Fielder) were not acting as advocates, but were instead acting as police officers investigating a case. 575. Rundle, Scruggs and Fielder knowingly and intentionally concealed drafts of the February 15th letter from Carey-Shuler herself, causing her to create fabricated and false testimony that the final letter was forged. 576. To conceal their fabrication and concealment of evidence, Rundle, Scruggs and Fielder then knowingly and intentionally concealed the drafts of the February 15th letter from Spence -Jones and her counsel, to cover up the fact that they knew that Carey-Shuler had authorized the transfer of $50,000 to Karym. And, as a further cover up, when the evidence of the drafts of the February 15th letter emerged, Rundle, Scruggs and Fielder falsely claimed that Spence -Jones and her counsel had manufactured these drafts and planted them in the Cafe' Soul file. 577. The SAO Dcfendants also engaged in the other conduct described supra, including, inter alia, lying to Carey-Shuler, threatening Carey-Shuler, falsely claiming that 77 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 83 of 114 Spence -Jones had forged Carey-Shuler's signature, and filing an arrest affidavit and Information that withheld exculpatory evidence and relied on false evidence. 578. The SAO Defendants acted with a knowing, willful, wanton, grossly reckless, unlawful, unreasonable, unconscionable, and flagrant disregard of Plaintiff's rights, privileges, welfare, and well-being and are guilty of egregious and gross misconduct towards Plaintiff. 579. The intentional and/or reckless creation of false and misleading evidence and withholding of exculpatory evidence was necessary to the probable cause finding which was the basis for the arrest warrant to be issued, for the Information, and ultimately, the grand jury's decision to indict. 580. In violation of the First Amendment, the SAO Defendants targeted Spence -Jones because of her political position, because she opposed the Mayor, and in order to deprive her of her right to hold public elected office. 581. As a result, Plaintiff was arrested, imprisoned, handcuffed, seized, charged, deprived of her employment and elected position, and deprived of her right not to be deprived of liberty and property, in violation of the First, Fourth and Fourteenth Amendments to the United States Constitution. 582. As a direct and proximate result of the misconduct and abuse of authority detailed above, Plaintiff sustained the damages hereinbefore alleged. 78 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 84 of 114 AS AND FOR A SECOND CLAIM FOR RELIEF 42 U.S.C. § 1983, Fabrication/Concealment of Evidence in Codina Case (Against SAO Defendants) 583. Plaintiff repeats and real leges the foregoing as if the same were fully set forth at length herein. 584. Under color of law, Rundle, Scruggs and Fielder, acting individually and in concert, engaged in the misconduct set forth supra, and knowingly fabricated "evidence," inter alia, that Spence -Jones stole Codina's money, used his funds as a personal piggybank, was a thief, and induced him to give money to a fake charity for a fake charity event, and intentionally concealed evidence from Armando Codina demonstrating that his money was deposited with a real charity in connection with a real charity event, in order to induce him to implicate Spence -Jones in a crime, arrest and imprison Spence -Jones, and support a baseless investigation and prosecution against Spence -Jones. 585, In knowingly and intentionally concealing and fabricating evidence, Rundle and Scruggs (and of course, Fielder) were not acting as advocates, but were instead acting as police officers investigating a case. 586. In violation of the First Amendmcnt, thc SAO Defendants targeted Spence -Jones because of her political position, because she opposed the Mayor, and in order to deprive her of her right to hold public elected office. 587. As a result, Plaintiff was arrested, imprisoned, handcuffed, seized, charged, deprived of her employment and elected position, and deprived of her right not to be deprived of liberty and property, in violation of the First, Fourth and Fourteenth Amendments to the United States Constitution. 79 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 85 of 114 588. The SAO Defendants acted with a knowing, willful, wanton, grossly reckless, unlawful, unreasonable, unconscionable, and flagrant disregard of Plaintiff s rights, privileges, welfare, and well-being and are guilty of egregious and gross misconduct towards Plaintiff. 589. As a direct and proximate result of the misconduct and abuse of authority detailed above, Plaintiff sustained the damages hereinbefore alleged. AS AND FOR A THIRD CLAIM FOR RELIEF 42 U.S.C. § 1983, False Arrest for Carey-Shuler Case (Against SAO Defendants) 590. Plaintiff repeats and realleges the foregoing as if the same were fully set forth at length herein. 591. Rundle, Scruggs and Fielder arrested, seized, detained, and imprisoned Spence -Jones without probable cause, and/or failed to intervene to prevent this conduct. 592. There was no probable cause to arrest Spence -Jones for the Carey-Shuler case (or any case). 593. The wrongful, unjustifiable, and unlawful apprehension, arrest, seizure, detention, and imprisonment of Spence -Jones was carried out without Spence -Jones' consent, without basis, and without probable cause or reasonable suspicion. 594. All this occurred without any fault or provocation on the part of Spence - Jones. 595. In so doing, the SAO Defendants deprived Plaintiff of rights, remedies, privileges, and immunities guaranteed to every citizen of the United States, in violation of 42 U.S.C. § 1983, including, but not limited to, rights guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution. 80 Submitted into the public record in connection with items D1.3 on 02-14-13 Todd E3ii.Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 86 of 114 596. Said acts were acted under pretense and color of state law, beyond the scope of their jurisdiction, without authority of law, and in abuse of their powers, and the SAO Defendants acted willfully, knowingly, and with the specific intent to deprive Plaintiff of her constitutional rights secured by 42 U.S.C. § 1983, and by the Fourth and Fourteenth Amendments to the United States Constitution. 597. The SAO Defendants acted with a knowing, willful, wanton, grossly reckless, unlawful, unreasonable, unconscionable, and flagrant disregard of Plaintiff s rights, privileges, welfare, and well-being and are guilty of egregious and gross misconduct towards Plaintiff. 598. As a direct and proximate result of the misconduct and abuse of authority detailed above, Plaintiff sustained the damages hereinbefore alleged. AS AND FOR A FOURTH CLAIM FOR RELIEF 42 U.S.C. § 1983, Malicious Prosecution and Seizure for Carey-Shuler Case (Against SAO Defendants) 599. Plaintiff repeats and realleges the foregoing as if the same were fully set forth at length herein. 600. Under color of state law, without any probable cause, and with malice, the SAO Defendants, in their investigatory capacity, fabricated and withheld evidence, illegally causing the bringing of criminal charges against Spence -Jones for Grand Theft in the Second Degree. 601. Spence -Jones was criminally prosecuted for almost two years until such charges were dismissed and resolved in her favor. 602. The SAO Defendants fabricated evidence implicating Plaintiff though they had documents proving that Carey-Shuler had authorized the payment of $50,000 in county 81 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 87 of 114 moneys to Karym, that MMAP authorized the payment of $50,000 to Karym, and that Spence - Jones had committed no crime. 603. The prosecution continued even after Carey-Shuler testified that she had authorized the payment of $50,000 in county moneys to Karym. 604. As a result of the wrongful prosecution, Plaintiff was seized and deprived of her rights under the Fourth and Fourteenth Amendments to the United States Constitution. 605. The SAO Defendants acted with knowing, willful, wanton, grossly reckless, unlawful, unreasonable, unconscionable, and flagrant disregard of Plaintiff's rights, privileges, welfare, and well-being and are guilty of egregious and gross misconduct towards Plaintiff. 606. As a direct and proximate result of the misconduct and abuse of authority detailed above, Plaintiff sustained the damages hereinbefore alleged. AS AND FOR A FIFTH CLAIM FOR RELIEF 42 U.S.C. § 1983, Malicious Prosecution and Seizure for Codina Case (Against SAO Defendants) 607. Plaintiff repeats and realleges the foregoing as if the same were fully set forth at length herein. 608. Under color of state law, without probable cause and with malice, the SAO Defendants, in their investigatory capacity, fabricated and withheld evidence, illegally causing the bringing of criminal charges against Plaintiff for Bribery and Grand Theft in the Third Degree. 609. Plaintiff was criminally prosecuted until such charges were dismissed and resolved in her favor. 82 Submitted into the public record in connection with items 01.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 88 of 114 610. Plaintiff was criminally prosecuted until the jury acquitted her on all counts, and the charges were dismissed in her favor. 611. As a result of the wrongful prosecution, Plaintiff was seized and deprived of her rights under the Fourth and Fourteenth Amendments to the United States Constitution. 612. The SAO Defendants acted with knowing, willful, wanton, grossly reckless, unlawful, unreasonable, unconscionable, and flagrant disregard of Plaintiff's rights, privileges, welfare, and well-being and are guilty of egregious and gross misconduct towards Plainti ff. 613. As a direct and proximate result of the misconduct and abuse of authority detailed above, Plaintiff sustained the damages hereinbefore alleged. AS AND FOR A SIXTH CLAIM FOR RELIEF 42 U.S.C. § 1983, First Amendment Retaliation (Against SAO Defendants) 614. Plaintiff repeats and rcalleges the foregoing as if thc same were fully set forth at length herein. 615. By the conduct set forth supra, and by knowingly and intentionally concealing and fabricating evidence in the Codina and Carey-Shuler cases, falsely arresting Spence -Jones, maliciously prosecuting and wrongfully seizing Spence -Jones, continuing the prosecutions so that she could not return to her elected position, and manipulating the Commission and the political and criminal process to orchestrate her removal and exile from public office, Rundle, Scruggs and Fielder wrongfully retaliated against Spence -Jones for her political position, because she opposed the Mayor, and in order to deprive her of her right to hold public elected office, in violation of Plaintiff's First Amendment rights. 83 Submitted into the public record in connection with items Di.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 89 of 114 616. As a direct and foreseeable consequence of the SAO Defendants' actions, Plaintiff was deprived of her rights under the First and Fourteenth Amendments to the United States Constitution. 617. The SAO Defendants acted under color of state law, with knowing, willful, wanton, grossly reckless, unlawful, unreasonable, unconscionable, and flagrant disregard ofPlaintiff's rights, privileges, welfare, and well-being and are guilty of egregious and gross misconduct towards Plaintiff. 618. As a direct and proximate result of the misconduct and abuse of authority detailed above, Plaintiff sustained the damages hereinbefore alleged AS AND FOR A SEVENTH CLAIM FOR RELIEF 42 U.S.C. § 1983, Civil Rights Conspiracy (Against all Defendants) 619. Plaintiff repeats and realleges the foregoing as if the same were fully set forth at length herein. 620. Under color of state law, Regalado, Rundle, Scruggs, and Fielder conspired and entered into express and implied agreements, understandings or meetings of the minds among themselves to deprive Plaintiff of her constitutional rights by the conduct described supra, including arresting, seizing, detaining, imprisoning, charging and prosecuting her for baseless charges in the Carey-Shuler and Codina cases, which these Defendants knew were fraudulent, baseless, and not supported by probable cause, and repeatedly manipulating the Commission and the political and criminal process, in order to remove her from elected office, and continuing the prosecutions so that she could not return to her elected position. 621. Regalado, Rundle, Scruggs, and Fielder, acting jointly and in concert, willfully participated in this illegal objective by various means, by the above, and by, inter alia: 84 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 90 of 114 a. fabricating Carey-Shuler's inculpatory testimony, threatening Carey-Shuler, and withholding evidence from Carey-Shuler; b. filing a false arrest affidavit based on fabricated testimony and withheld exculpatory evidence, causing Spence -Jones' arrest, detention, imprisonment, suspension, and loss of employment and public office, without basis or probable cause; c. timing the arrest to coincide with Spence -Jones' swearing in to office; d. causing and expediting the suspension of Spence -Jones; e. tiling a false Information based on fabricated testimony and withheld exculpatory evidence f repeatedly manipulating the political and criminal process to orchestrate Spence -Jones' removal and control the appointment of Spence - Jones' replacement; g. indicting Spence -Jones based on fabricated evidence, solely to circumvent an imminent court ruling returning Spence -Jones to office; h. lying to and withholding evidence from Codina to cause him to be the chief prosecution witness, in an attempt to manufacture probable cause in the Codina case; i. arresting and imprisoning Spence -Jones on baseless bribery and, later, grand theft charges in the Codina case; j. withholding exculpatory drafts of Carey-Shuler's letter from Carey-Shuler, Spence -Jones, her counsel, and the public; 85 Submitted, into the public record in connection with items DI.3 on 02-14-13 Todd 13: Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 91 of 114 k. attempting to cover up and perpetuate the scheme by ordering prosecution witnesses such as Carey-Shuler and Codina not to reveal the scheme; 1. continuing the Carey-Shuler prosecution even after she testified that she authorized county moneys for Karym; m postponing dismissing the Indictment to delay Spence -Jones' return to office; n. refusing to dismiss the Indictment until Spence -Jones made statements validating the prosecution; o. covering up the fraud as to Carey-Shuler by falsely accusing Spence -Jones and her lawyer of manufacturing, forging, and planting evidence; and P. repeatedly defaming Spence -Jones to potential jurors and grand jurors, the City, the Governor, the media, and the public. 622. As a direct and foreseeable consequence of this conspiracy, Plaintiff was deprived of her rights undcr the Fourth and Fourteenth Amendments to the United States Constitution. 623. Defendants acted with knowing, willful, wanton, grossly reckless, unlawful, unreasonable, unconscionable, and flagrant disregard of Plaintiff's rights, privileges, welfare, and well-being in conspiring against her and are guilty of egregious and gross misconduct towards Plaintiff. 624. As a direct and proximate result of the misconduct and abuse of authority detailed above, Plaintiff sustained the damages hereinbefore alleged. 86 Submitted into the public record in connection with items 0I.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 92 of 114 AS AND FOR AN EIGHTH CLAIM FOR RELIEF 42 U.S.C. § 1983, Supervisory Liability (Against Rundle) 625. Plaintiff repeats and realleges the foregoing as if the same were fully set forth at length herein. 626. In addition to Rundle's liability for directing the conspiracy to deprive Plaintiff of her constitutional rights, Rundle is additionally liable as a supervisor. 627. As the head of the SAO, Rundle supervised Scruggs and Fielder. Indeed, upon information and belief, Scruggs reported directly to Rundle. 628. In her supervisory capacity, Rundle caused Scruggs and Fielder to violate Plaintiffs constitutional rights, specifically Plaintiff's rights under the First, Fourth and Fourteenth Amendments to the United States Constitution, as detailed above. 629. Rundle directed Scruggs and Fielder to violate Plaintiff's constitutional rights. 630. Rundle knew that Scruggs and Fielder would violate Plaintiffs constitutional rights and failed to stop them from doing so. 631. Rundle knew that Scruggs had a history f documented unlawful, unprofessional, and unethical conduct, including withholding of exculpatory evidence from the defense, withholding of exculpatory evidence from the public/violation of the public records laws, and other misconduct set forth supra, yet assigned Scruggs to investigate, arrest, imprison, and prosecute Spence -Jones notwithstanding (and on information and belief, because of) such misconduct. 632. Rundle acted under color of law, and with a knowing, willful, wanton, grossly reckless, unlawful, unreasonable, unconscionable, and flagrant disregard of Plaintiff s 87 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 93 of 114 rights, privileges, welfare, and well-being and is guilty of egregious and gross misconduct towards Plaintiff. 633. As a direct and proximate result of the misconduct and abuse of authority detailed above, Plaintiff sustained the damages hereinbefore alleged AS AND FOR A NINTH CLAIM FOR RELIEF Civil RICO, 18 U.S.C. § 1962(c) & (d) (Against all Defendants) 634. Plaintiff repeats and realleges the foregoing as if the same were fully set forth at length herein. 635. Plaintiff and defendants are natural "persons," and as such are "persons" within the meaning of 18 U.S.C. § 1961(3). The Enterprise 636. Regalado and the SAO Defendants comprise two distinct groups of persons that together form an enterprise within the meaning of 18 U.S.C. § 1961(4). Each and every defendant is associated with the enterprise. The SAO Defendants also associated together to form a separate and distinct enterprise within the meaning of 18 U.S.C. § 1961(4). 637. Taken together, Regalado and the SAO Defendants are an association -in - fact within the meaning of 18 U.S.C. § 1961(4). The SAO Defendants are also themselves an association -in -fact within the meaning of 18 U.S.C. § 1961(4). 638. The purpose of the enterprise and/or enterprises (collectively "Enterprise") was to remove Spence -Jones, Regalado's political opponent, from elected office through fraudulent means, and keep her off the Commission as long as possible. This was accomplished, inter alia, by fabricating false charges to remove Spence -Jones from office and continuing to pursue those charges even where there was no evidence supporting them. 88 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 94 of 114 639. As part of this fraudulent conspiracy, Rundle, Scruggs and Fielder engaged in the above, and in, inter alia, the following acts: a. fabricating Carey-Shuler's inculpatory testimony, threatening Carey-Shuler, and withholding evidence from Carey-Shuler; b. filing a false arrest affidavit based on fabricated testimony and withheld exculpatory evidence, causing Spence -Jones' arrest, detention, imprisonment, suspension, and loss of employment and public office, without basis or probable cause; c. timing the arrest to coincide with Spence -Jones' swearing in to office; d. causing and expediting the suspension of Spence -Jones; e. filing a false Information based on fabricated testimony and withheld exculpatory evidence f. repeatedly manipulating the political and criminal process to orchestrate Spence -Jones' removal and control the appointment of Spence - Jones' replacement; g. indicting Spence -Jones based on fabricated evidence, solely to circumvent an imminent court ruling returning Spence -Jones to office; h. lying to and withholding evidence from Codina to cause him to be the chief prosecution witness, in an attempt to manufacture probable cause in the Codina case; i. arresting and imprisoning Spence -Jones on baseless bribery and, later, grand theft charges in the Codina case; 89 Submitted into the public record in connection with items D1.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 95 of 114 J. withholding exculpatory drafts of Carey-Shuler's letter from Carey-Shuler, Spence -Jones, her counsel, and the public; k. attempting to cover up and perpetuate the scheme by ordering prosecution witnesses such as Carey-Shuler and Codina not to reveal the scheme; 1. continuing the Carey-Shuler prosecution even after she testified that she authorized county moneys for Karym; m. postponing dismissing the Indictment to delay Spence -Jones' return to office; n. refusing to dismiss the Indictment until Spence -Jones made statements validating the prosecution; o. covering up the fraud as to Carey-Shuler by falsely accusing Spence -Jones and her lawyer of manufacturing, forging, and planting evidence; and p. repeatedly defaming Spence -Jones to potential jurors and grand jurors, the City, the Governor, the media, and the public. Pattern of Racketeering Activity — Mail and Wire Fraud 640. Defendants, individually and collectively, as an Enterprise, have engaged, directly or indirectly, in a pattern of racketeering activity, as described below, in violation of 18 U.S.C. § 1962(c) & (d). 641. Defendants, acting individually and as part of the Enterprise, have used the mails and interstate wires and have caused the mails and interstate wires to be used, or 90 Submitted,4nto the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 96 of 114 reasonably knew the mails and interstate wires would be used, in furtherance of their fraudulent schemes. For example: a. By taking the sworn statement of Armando Codina on March 2, 2010 via interstate telephone, as detailed above, while Scruggs and Fielder were in Florida and Codina was out of state. b. By using the wires, i.e., the SAO's website, on November 13, 2009 to issue a press release announcing that Spence -Jones was being criminally charged. c. By using the wires, i.e., the SAO's website, on March 3, 2010 to issue a press release making false statements about Spence -Jones. d. By using the wires, i.e., the SAO's website, on August 23, 2011 to issue a press release and Closeout Memo which made false statements about Spence - Jones. e. Scruggs and Fielder visited New York in June 2010 to interview witnesses for the Codina case and investigate Spence -Jones in yet other cases. On information and belief, during that trip, Scruggs and Fielder repeatedly used the wires, including telephone and email, to communicate with others at the SAO. f On information and belief, by repeatedly using the wires, including telephone and email, between Rundle, Scruggs, and others at the SAO, in connection with the fraudulent investigations, arrests, imprisonment, detention, seizure, and prosecutions against Spence -Jones. 642. On information and belief, each and every Defendant had specific knowledge that the mails and wires were being utilized in furtherance of the overall purpose of 91 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd Ft. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 97 of 114 executing the scheme to defraud, and/or it was reasonably foreseeable that the mails and wires would be used given the nature of the investigation and prosecutions and the repeated use of the press, inter alia, to destroy Spence -Jones' reputation, pollute the jury pool, and engineer Spence - Jones' removal. 643. In connection with defendants' schemes, the acts of racketeering activity have occurred after the effective date of the RICO statute, 18 U.S.C. § 1961 et seq., and on numerous occasions over a substantial time period within ten years of each other. Defendants' conduct has involved and continues to pose a threat of long term criminality since it is believed to have commenced no later than 2009 and lasted until at least 2011. Because the defendants' actions were part of their regular way of doing business, and because Spence -Jones is again an active Commissioner for District 5, and all defendants remain in their positions of power as elected officials, prosecutors, or investigators, there is also an ongoing threat that they will continue their fraudulent scheme. Relationship of Pattern of Racketeering Activity to Enterprise 644. As described above, the goal of the enterprise was to remove Spence - Jones, Regalado's political opponent, from elected office through fraudulent means, and keep her off the Commission as long as possible. This was accomplished, inter alia, by the conduct set forth supra, and by defrauding Carey-Shuler, defrauding Codina, fabricating false charges to remove Spence -Jones from office and continuing to pursue those charges even where there was no evidence supporting them. 645. Each defendant has conducted or participated, directly or indirectly, in the conduct of the enterprise's affairs through the pattern of racketeering activity described above. Accordingly, each defendant has violated 18 U.S.C. § 1962(c). 92 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 98 of 114 646. Each defendant has knowingly agreed and conspired to violate the provisions of 18 U.S.C. § 1962(c), including the numerous predicate acts of mail and wire fraud described above, and has thus violated 18 U.S.C. § 1962(d). 647. As a direct and proximate result of the RICO violations described in this Complaint. Plaintiff was injured by being deprived of her elected office, losing wages, incurring legal fees and costs, and harm to her business/professional reputation, thus constituting an injury to Plaintiff's business or property within the meaning of 18 U.S.C. § 1964, by the actions of Defendants in violation of 18 U.S.C. § 1962(c) & (d). 648. For the violations of 18 U.S.C. § 1962 described in this Complaint, Plaintiff is entitled to recover compensatory and treble damages in an amount to be determined at trial. AS AND FOR A TENTH CLAIM FOR RELIEF 42 U.S.C. § 1983, Retaliatory Inducement to Prosecute (Against Regalado) 649. Plaintiff repeats and realleges the foregoing as if the same were fully set forth at length herein. 650. Regalado was motivated by retaliatory animus against Spence -Jones because they were political opponents and he knew he could not control her vote on numerous issues of significant concern to the people of the City of Miami. 651, Regalado induced his friend and co-conspirator, Rundle, to prosecute Spence -Jones for the Carey-Shuler case and the Codina case. 652. Regalado induced Rundle to prosecute Spence -Jones to remove Spence - Jones from elected office. 93 Submittect,into the public record in connection with items DI.3 On 02-14-13 • • , Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 99 of 114 653. There was no probable cause to pursue the Carey-Shuler case or the Codina case. 654. Regalado's inducement caused Rundle to prosecute these cases, which they knew were baseless and lacking in probable cause. 655. Even after Codina stated that he was defrauded by the SAO, Regalado continued to induce Rundle to prosecute Spence -Jones. 656. Even after Carey-Shuler testified that she had authorized the provision of county moneys to Karym, Regalado continued to induce Rundle to prosecute Spence -Jones. 657. Even after Spence -Jones was acquitted on all counts in fewer than 90 minutes for the Codina case, Regalado continued to induce Rundle to prosecute Spence -Jones. 658. Regalado continued to induce Rundle to prosecute Spence -Jones to ensure that Spence -Jones could not return to her elected office. 659. Regalado acted under color of law, with knowing, willful, wanton, grossly reckless, unlawful, unreasonable, unconscionable, and flagrant disregard of Plaintiff's rights, privileges, welfare, and well-being and is guilty of egregious and gross misconduct towards Plaintiff. 660. As a direct and foreseeable consequence of this conspiracy, Plaintiff was deprived of her rights under the First and Fourteenth Amendments to the United States Constitution. 661. As a direct and proximate result of the misconduct and abuse of authority detailed above, Plaintiff sustained the damages hereinbefore alleged. 94 Submitted into the public record in connection with. items DI.3 on 02-14-13 Todd B: Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 100 of 114 AS AND FOR AN ELEVENTH CLAIM FOR RELIEF 42 U.S.C. § 1983, Due Process/Stigma Plus (Against SAO Defendants) 662. Plaintiff repeats and realleges the foregoing as if the same were fully set forth at length herein. 663. Under color of law, Rundle, Scruggs, and Fielder intentionally and maliciously made false public statements of fact of and concerning Spence -Jones, to the media, the public, the Governor, the City, potential jury and grand jury pools, and/or to key witnesses, as set forth supra, and by falsely stating, inter alia: a. that Spence -Jones committed "acts" of "re -directing county money for her personal use," as detailed in paragraph 165; b. that Spence -Jones spent S50,000 that was "supposed to go to two other entities," as detailed in paragraph 167; c. that Spence -Jones stole money from the public, as detailed in paragraphs 170- 173 and 259; d. that Spence -Jones had gone to Las Vegas with Reverend Gaston Smith, and stole and spent moneys meant for a separate charity, as detailed in paragraph 259; e. that Spence -Jones had forged Carey-Shuler's name on the official document directing payment to Karym, as detailed in paragraph 265; f. that Spence -Jones "went to Timbuktu Marketplace and . . . there were dealings there which ended up tricking Mr. Weeks and Osun Village," as detailed in paragraph 273; 95 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 101 of 114 g. that Codina had made donations to a "fund controlled by Michelle Spence - Jones" and the SAO had him "on tape on a bribery case," as detailed in paragraphs 397 and 400; h, that the solicitation of Codina was for a fake, non -legitimate charity, run and controlled by Spence -Jones, and that Spence -Jones used the charity money as her personal piggybank, as detailed in paragraph 407; i. that the charitable benefit had simply never occurred, as detailed in paragraph 408; j. that -no event had taken place at the Lyric Theater, that the charity was a sham, and that Michelle Spence -Jones had used the money as her own piggy bank," as detailed in paragraph 409; k. that Spence -Jones was a thief, could not help herself from stealing, and was a "mouse to cheese," as detailed in paragraph 410; 1. that the money Spence -Jones' assistant solicited from Codina was "ultimately deposited . . into an account accessible to Commissioner Michelle Spence - Jones," as detailed in paragraph 434; and m. that Spence -Jones "solicited" a "bribe" from Codina, as detailed in paragraph 436. 664. These statements stigmatized Plaintiff by imputing that she acted with fraud, dishonesty, misconduct and unfitness in her profession as an elected official, These statements stigmatized Plaintiff by imputing that she had committed the serious crimes of theft, forgery, and soliciting a bribe. 96 Submitted into the public record in connection with items 0I.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 102 of 114 665. These false statements were made in connection with and were reasonably related to and/or caused the constitutional violations Spence -Jones suffered, including the multiple suspensions of Spence -Jones from her public employment as an elected official on November 13, 2009, January 14, 2010, and March 4, 2010, her loss of livelihood and business goodwill, her loss of liberty, and her false arrests, imprisonment, and wrongful prosecutions. 666. The SAO Defendants' actions evidenced a reckless and callous disregard for, and deliberate indifference to, Plaintiff's constitutional rights. 667. As a direct and proximate result of these false public statements, Plaintiff sustained the damages hereinbefore alleged. AS AND FOR A TWELFTH CLAIM FOR RELIEF Florida RICO, Title 45, § 772.103(3) and (4) (Against all Defendants) 668. Plaintiff repeats and realleges the foregoing as if the same were fully set forth at length herein. 669. Plaintiff and Defendants are natural "persons," and as such are "persons" within the meaning of Title 45, § 772.103. The Enterprise 670. Regalado and the SAO Defendants comprise two distinct groups of persons that together form an enterprise within the meaning of Title 45, § 772.103(3). Each and every defendant is associated with the enterprise. The SAO Defendants also qualify as separate and distinct enterprises within the meaning of Title 45, § 772.103(3). 671. Taken together, Regalado and the SAO Defendants are an association -in - fact within the meaning of Title 45, § 772.103(3). The SAO Defendants are also themselves an association -in -fact within the meaning of Title 45, § 772.103(3). 97 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on ELSD Docket 12/03/2012 Page 103 of 114 672. The purpose of the enterprise and/or enterprises (collectively "Enterprise") was to remove Spence -Jones, Regalado's political opponent, from elected office through fraudulent means, and keep her off the Commission as long as possible. This was accomplished, inter alia, by fabricating false charges to remove Spence -Jones from office and continuing to pursue those charges even where there was no evidence supporting them. 673. As part of this fraudulent conspiracy, Rundle, Scruggs and Fielder engaged in the above, and, inter alia, in the following acts: a. fabricating Carey-Shuler's inculpatory testimony, threatening Carey-Shuler, and withholding evidence from Carey-Shuler; b. filing a false arrest affidavit based on fabricated testimony and withheld exculpatory evidence, causing Spence -Jones' arrest, detention, imprisonment, suspension, and loss of employment and public office, without basis or probable cause; c. timing the arrest to coincide with Spence -Jones' swearing in to office; d. causing and expediting thc suspcnsion of Spence -Jones; e filing a false Information based on fabricated testimony and withheld exculpatory evidence; f. repeatedly manipulating the political and criminal process to orchestrate Spence -Jones' removal and control the appointment of Spence - Jones' replacement; g. indicting Spence -Jones based on fabricated evidence, solely to circumvent an imminent court ruling returning Spence -Jones to office; 98 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 104 of 114 h. lying to and withholding evidence from Codina to cause him to be the chief prosecution witness, in an attempt to manufacture probable cause in the Codina case; i. arresting and imprisoning Spence -Jones on baseless bribery, and later, grand theft charges in the Codina case; j. withholding exculpatory drafts of Carey-Shuler's letter from Carey-Shuler, Spence -Jones, her counsel, and the public; k. attempting to cover up and perpetuate the scheme by ordering prosecution witnesses such as Carey-Shuler and Codina not to reveal the scheme; 1, continuing the Carey-Shuler prosecution even after she testified that she authorized county moneys for Karym; m postponing dismissing the Indictment to delay Spence -Jones' return to office; n. refusing to dismiss the Indictment until Spence -Jones made statements validating the prosecution; o. covering up the fraud as to Carey-Shuler by falsely accusing Spence -Jones and her lawyer of manufacturing, forging, and planting evidence; and p. repeatedly defaming Spence -Jones to potential jurors and grand jurors, the City, the Governor, the media, and the public. 99 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 105 of 114 Pattern of Racketeering Activity — Tampering with a Witness 674. Defendant engaged in "misleading conduct" toward Carey-Shuler with intent to cause her to testify untruthfully in the SAO's "official investigation" and at the trial of Spence -Jones, an "official proceeding," in violation of Section 914.22(1)(f) of the Florida code. Such conduct is a predicate act for a Florida RICO Claim pursuant to Section 772.102(33). 675. Defendant engaged in "misleading conduct" toward Carey-Shuler with intent to cause her to withhold truthful testimony in the SAO's "official investigation" and at the trial of Spence -Jones, an "official proceeding," in violation of Section 914.22(1)(f) of the Florida code. Such conduct is a predicate act for a Florida RICO Claim pursuant to Section 772.102(33). 676. Defendant engaged in "misleading conduct" toward Codina with intent to cause him to testify untruthfully in the SAO's "official investigation" and at the trial of Spence - Jones, an "official proceeding," in violation of Section 914.22(1)(f) of the Florida code. Such conduct is a predicate act for a Florida RICO Claim pursuant to Section 772.102(33). 677. Defendant engaged in "misleading conduct" toward Codina with intent to cause him to withhold truthful testimony in the SAO's "official investigation" and at the trial of Spence -Jones, an "official proceeding," in violation of Section 914.22(1)(0 of the Florida code. Such conduct is a predicate act for a Florida RICO Claim pursuant to Section 772.102(33). 100 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 106 of 114 Pattern of Racketeering Activity — Tampering with or fabricating physical evidence 678. Defendants concealed the drafts of the Carey-Shuler February 15th letter with the "purpose to impair its verity or availability" in the official investigation against Spence - Jones and at the trial of Spence -Jones, an "official proceeding," in violation of Section 918.13 of the Florida code. Such conduct is a predicate act for a Florida RICO Claim pursuant to Section 772.102(34). Relationship of Pattern of Racketeering Activity to Enterprise 679, As described, the goal of defendants' Enterprise was to remove Spence - Jones, Regalado's political opponent, from elected office through fraudulent means. This was accomplished by defrauding Carey-Shuler, defrauding Codina, fabricating false charges to remove Spence -Jones from office and continuing to pursue those charges even where there was no evidence supporting them. 680. The pattern of racketeering activity described above is integral to defendants' scheme. Without engaging in witness tampering and concealment of evidence, defendants would have been unable to manufacture the baseless charges that supported and caused the Governor's removals of Spcnce-Jones from office. 681. Each defendant has conducted or participated, directly or indirectly, in the conduct of the enterprise's affairs through the pattern of racketeering activity described above. 682. Each defendant has knowingly agreed and conspired to violate the provisions of 772.103(4), including the numerous predicate acts of witness tampering and evidence concealment, and has thus violated 772.103(3) and (4). 683. In connection with defendants' scheme, the acts of racketeering activity have occurred on numerous occasions over a substantial time period within ten years of each 101 Submitted into the public record in connection with items DI.3 on Todd B. B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 107 of 114 other. Defendantsconduct has involved and continues to pose a threat of long term criminality since it is believed to have commenced no later than 2009 and lasted until at least 2011. Because the defendants' actions were part of their regular way of doing business, and because all defendants remain in their positions of power as elected officials, prosecutors, or investigators, there is also an ongoing threat that they will continue their fraudulent scheme. 684. As a direct and proximate result of the RICO violations described in this Complaint, Plaintiff suffered actual damages, as detailed herein. For the violations of 772.103(3) and (4) described in this Complaint, Plaintiff is entitled to recover compensatory and treble damages in an amount to be determined at trial. AS AND FOR A THIRTEENTH CLAIM FOR RELIEF Florida Common Law/False Arrest for Carey-Shuler Case (Against SAO Defendants) 685. Plaintiff repeats and realleges the foregoing as if the same were fully set forth at length herein. 686. At all relevant times, the SAO Defendants acted forcibly in apprehending and arresting Plaintiff. 687. Rundle, Scruggs and Fielder arrested Spence -Jones without probable cause, and/or failed to intervene to prevent this conduct. 688. There was no probable cause to arrest Plaintiff for the Carey-Shuler case. 689. The wrongful, unjustifiable, and unlawful apprehension, arrest, and detention, of Plaintiff was without Plaintiff s consent, without basis, and without probable cause or reasonable suspicion. 690. This is a cause of action for damages in excess of fifteen thousand dollars exclusive of costs and attorneys' fees. 102 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 108 of 114 691. As a direct and proximate result of the misconduct and abuse of authority detailed above, Plaintiff sustained the damages hereinbefore alleged. AS AND FOR A FOURTEENTH CLAIM FOR RELIEF Florida Common Law/Malicious Prosecution for Carey-Shuler Case (Against SAO Defendants) 692. Plaintiff repeats and realleges the foregoing as if the same were fully set forth at length herein. 693. The SAO Defendants, in their investigatory capacity, fabricated and withheld evidence, illegally causing the bringing of criminal charges against Spence -Jones for Grand Theft in the Second Degree. 694. Plaintiff was criminally prosecuted until such charges were dismissed and resolved in her favor. 695. There was no probable cause for the prosecution from its inception. 696. The SAO Defendants fabricated evidence implicating Plaintiff though they had documents proving that Carey-Shuler had authorized the payment of $50,000 in county moneys to Karym, and that Spence -Jones had committed no crime. 697. The prosecution continued even after Carey-Shuler admitted that she had authorized the payment of $50,000 in county moneys to Karym. 698. The SAO Defendants acted with malice, and with knowing, willful, wanton, grossly reckless, unlawful, unreasonable, unconscionable, and flagrant disregard of Plaintiff's rights, privileges, welfare, and well-being and are guilty of egregious and gross misconduct towards Plaintiff. 699. This is a cause of action for damages in excess of fifteen thousand dollars exclusive of costs and attorneys' fees. 103 Submitted into the public record in connection with items Di.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 109 of 114 700. As a direct and proximate result of the misconduct and abuse of authority detailed above, Plaintiff sustained the damages hereinbefore alleged. AS AND FOR A FIFTEENTH CLAIM FOR RELIEF Florida Common Law/Malicious Prosecution for Codina Case (Against SAO Defendants) 701. Plaintiff repeats and realleges the foregoing as if the same were fully set forth at length herein. 702. Under color of state law, the SAO Defendants, in their investigatory capacity, fabricated and withheld evidence, illegally causing the bringing of criminal charges against Plaintiff for Bribery and Grand Theft in the Third Degree. 703. There was no probable cause for the prosecution from its inception. 704. Plaintiff was criminally prosecuted until the jury acquitted her on all counts. 705. The SAO Defendants acted with malice, and with knowing, willful, wanton, grossly reckless, unlawful, unreasonable, unconscionable, and flagrant disregard of Plaintiff's rights, privileges, welfare, and well-being and are guilty of egregious and gross misconduct towards Plaintiff. 706. This is a cause of action for damages in excess of fifteen thousand dollars exclusive of costs and attorneys' fees. 707. As a direct and proximate result of the misconduct and abuse of authority detailed above, Plaintiff sustained the damages hereinbefore alleged. 104 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 110 of 114 AS AND FOR A SIXTEENTH CLAIM FOR RELIEF Florida Common Law/Intentional Infliction of Emotional Distress (Against All Defendants) 708. Plaintiff repeats and realleges the foregoing as if the same were fully set forth at length herein. 709. As set forth supra, defendants' conduct was extreme and outrageous. 710. These actions were done with intent to cause Plaintiff mental suffering and/or were done in reckless disregard of the mental suffering that would result. 711. As a result of the SAO Defendants' actions, Plaintiff suffered extreme and severe emotional and physical distress. 712. As a direct and proximate result of the misconduct and abuse of authority detailed above, Plaintiff sustained the damages hereinbefore alleged. 105 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 111 of 114 WHEREFORE, Plaintiff respectfully requests judgment against Defendants as follows: (A) an order granting compensatory damages in an amount to be determined at trial; (B) an order awarding treble damages pursuant to RICO, 18 U.S.C. § 1964(c), and Florida RICO, Title 45, § 772.104(1); (C) an order awarding punitive damages in an amount to be determined at trial; (D) an order awarding Plaintiff reasonable attorneys' fees and costs under 42 U.S.C. § 1988, RICO, 18 U.S.C. § 1964(c), and Florida RICO, Title 45, § 772.104(1); and (E) an order awarding such other further relief as the Court may deem just and proper. Dated: Miami, Florida December 3, 2012 EMERY CELLI BRINCKERHOFF & ABADY LLP Ilann Maazel* Debra L. Greenberger* Jennifer Keighley* 75 Rockefeller Plaza, 20th Floor New York, New York 10019 Phone: (212) 763-5000 Fax: (212) 763-5001 imaazel@ecbalaw.com dgreenberger ecbalaw.com jkeighley@ecbalaw.com Charles J. Ogletree* Harvard Law School Hauser 516 1563 Massachusetts Avenue Cambridge, MA 02138 Phone: (617) 495-5097 Fax: (617) 496-3936 ogletree@law.harvard.edu LAW OFFICES OF RAY TASEFF, P.A. /s/ Ray Taseff Florida Bar No. 352500 225 Alcazar Avenue, 2nd Floor Coral Gables, Florida 33134 Phone: (786) 363-9020 Fax: (786) 363-9040 RayTaseffPA@gmail.com Attorneys.for Plaintiff * Application for admission pro hac vice to be submitted 106 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 112 of 114 Exhibit A to Complaint: Timeline Date Event Related If i 1993 Rundle becomes State Attorney 41 2005 Spence -Jones elected Commissioner for District 5 24 Apr. 3, 2006 Benefit at the Lyric Theatre; Codina Group publicly recognized 379, 392 Aug. 2009 Regalado states Spence -Jones going to jail 123 Fall 2009 SAO repeatedly and secretly contacts Office of the City Attorney about filling Commission vacancies 107 No later than Sep. 18, 2009 SAO has the Cafe Soul file, including the drafts 247 Sep. 18, 2009 Carey-Shuler gives sworn statement after being deceived by Fielder and Scruggs 267 Nov. 3, 2009 Regalado elected Mayor. Spence -Jones reelected Commissioner. 124, 130 Nov. 10, 2009 Governor Crist has document in file listing three felony charges for Spence -Jones 139 Nov. 11, 2009 Regalado sworn in as Mayor. Spence -Jones photograph Regalado tries to destroy. 146 - 153 Nov. 12, 2009 Spence -Jones swom in as Commissioner Fielder files arrest affidavit 156 - 157 Nov. 13, 2009 Spence -Jones arrested, detained, booked and jailed for Carey-Shuler case Crist issues Executive Order 09-248 suspending Spence -Jones Rundle forces Commissioner Gonzalez out of office Rundle defames Spence -Jones at press conference 159 - 167, 175, 194 Approximately Nov. 13, 2009 Rundle asks Bru to convince Gonzalez to create quorum to replace Spence -Jones Regalado pressures Bru to opine that the Commission could replace Spence -Jones absent a quorum 205, 213 Nov. 20, 2009 Rundle defames Spence -Jones to the Miami Herald 170 - 173 Nov, 23, 2009 Deadline for Commission to appoint Spence -Jones replacement 199 Nov. 25, 2009 Suarez sworn in; Commission has quorum. Too late! Commission schedules special election for Jan. 12, 2010 219 - 222 Dec. 2, 2009 SAO files Information in the Carey-Shuler case 292 Dec. 4, 2009 Judge Butchko reprimands Scruggs for "very unprofessional" withholding of evidence 95 Dec. 19, 2009 Crist threatens to suspend Spence -Jones again if she wins special election 306 A-1 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 113 of 114 Date Event Related Jan. 4, 2010 Spence -Jones sues Crist (the ACLU case)307 Jan. 6, 2010 Fielder threatens Codina in 1-95 phone call 395 - 402 Jan. 12, 2010 Scruggs to Codina: if Spence-Joneswins special election, we'll charge her again Scruggs and Fielder tell Codina there was no charity event and Spence -Jones stole his money Spence -Jones wins Special Election 405 - 409, 415 Jan. 14, 2010 Crist issues Executive Order 10-05 suspending Spence -Jones again, effective January 16, 2010 312 Jan. 26, 2010 10-day deadline for Commission to appoint Spence -Jones replacement Shortly before 11:18 p.m.: Commission appoints Dunn; "Magic City" for Regalado 318, 330, 335 Feb. 26, 2010 Judge Platzcr: no Indictment, no suspension. Promises final ruling within 10 days or sooner. 343 - 344 flDays before SAO suddenly seeks Indictment in Codina case Mar. 3, 2010 347 - 355 Mar. 1, 2010 SAO's new "policy": indict in public corruption cases 424 - 426 Mar. 2, 2010 Scruggs lies to Codina again; Codina's sworn statement 427 - 429 Mar. 3, 2010 SAO gets Indictment in Carey-Shuler case SAO gets Indictment in Codina case 356, 363 Mar. 4, 2010 1 Crist issues Executive Order 10-61 suspending Spence -Jones for a third time 358 - 359 Apr. 5, 2010 Because of Indictment, Judge Platzer dismisses ACLU case 361 May 27, 2010 Scruggs threatens to get "even" with Raben 447 - 448 Jun. 21, 2010 Raben shows drafts to Carey-Shuler at her deposition; Carey-Shuler tricked by the SAO 458 461 Jan. 18, 2011 Regalado sends secret email to rename street "Katherine Fernandez- Rundle Avenue" 60 - 61 Feb. 16, 2011 Codina deposition: Codina accuses Scruggs of deception 468 Feb. 28 - Mar. 16, 2011 Codina trial; Spence -Jones acquitted in less than 90 minutes 491 - 504 Mar. 10, 2011 Commission names street "Katherine Fernandez -Rundle Avenue" 492 Approx. May 2011 Regalado: pass resolutions before "hell on wheels" returns to Commission 518 Summer 2011 1 Back -door meeting between Regalado and Rundle 516 A-2 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 114 of 114 Date Event Related 111lis Jul. 2011 SAO demands Spence -Jones admit that there is "probable cause" for a "fair prosecution" 521 — 523 Aug. 23, 2011 Raben calls SAO's bluff; refuses to postpone August 24th court date SAO dismisses Carey-Shuler case SAO issues defamatory press release and close-out memo 524 — 561 Aug. 24, 2011 Codina: Scruggs is a "serial liar" Lawyer for Carey-Shuler: "Scruggs lied to her" 562 — 564 A-3 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon A RESOLUTION OF THE MIAMI CITY COMMISSION WITH ATTACHMENT(S), DENYING THE REQUEST OF MAYOR TOMAS REGALADO FOR DEFENSE IN THE CASE OF MICHELLE SPENCE-JONES V. STATE ATTORNEY KATHERINE FERNANDEZ RUNDLE, ET AL., CASE NO. 12-CV-24253-XXXX; BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The request of Mayor Tomas Regalado for defense in the case of Michelle Spence -Jones v. State Attorney Katherine Fernandez Rundle, Mayor Tomas Regalado, Assistant State Attorney William Richard Scruggs and Investigator Robert Fielder, Case No. 12-cv-24253- XXXX, United States District Court, Southern District of Florida, is hereby denied. Section 2. This Resolution shall become effective immediately upon its adoption and signature of the Mayor.1 11 the Mayor does not sign this Resolution, it shall become effective at the end of ten calendar days from the date it was passed and adopted. If the Mayor vetoes this Resolution, it shall become effective immediately upon override of the veto by the City Commission. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon A RESOLUTION OF THE MIAMI CITY COMMISSION WITH ATTACHMENT(S), APPROVING THE REQUEST OF MAYOR TOMAS REGALADO FOR DEFENSE IN THE CASE OF MICHELLE SPENCE-JONES V. STATE ATTORNEY KATHERINE FERNANDEZ RUNDLE, ET AL., CASE NO. 12-CV-24253-XXXX; AUTHORIZING THE EXPENDITURE OF CITY FUNDS TO PAY ATTORNEYS' FEES AND COSTS MONTHLY; MAKING A DETERMINATION OF PUBLIC PURPOSE; DECLARING THE POLICY OF THE CITY OF MIAMI WITH RESPECT TO THE IMPLEMENTATION OF SECTION 111.07, FLORIDA STATUTES, FOR CITY COMMISSIONERS AND THE MAYOR. BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The request of Mayor Tomas Regalado for defense in the case of Michelle Spence -Jones v. State Attorney Katherine Fernandez Rundle, Mayor Tomas Regalado, Assistant State Attorney William Richard Scruggs and Investigator Robert Fielder, Case No. 12-cv-24253- XXXX, United States District Court, Southern District of Florida, is hereby approved based upon the findings and declarations set forth herein, and subject to the conditions set forth herein, Section 2. The expenditure of City funds from the appropriate accounts to pay reasonable attorneys' fees and costs monthly is hereby authorized, and the City Manager is hereby directed to cause such payments to be made, if it is found that such attorneys' fees and costs are reasonable. Section 3. The City Commission hereby makes the following findings of fact and declarations of public purpose related to the actions set forth herein, based upon a weighing of policy concerns and issues important to the City and the public interest: Section 4. The City reserves the right not to pay any particular invoice or invoices for attorneys' fees and costs for any reason. Section 5. If an order, judgment or verdict is rendered against the Mayor, and it is found by the court that the Mayor acted in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety or property, then the City shall seek reimbursement for all attorneys' fees and costs paid from the Mayor. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Section 6. If a verdict is rendered in favor of the Mayor, and prevailing party attorneysfees and costs are available or payment of attorneys' fees and costs as a sanction are appropriate, the Mayor shall pursue such prevailing party attorneys' fees and costs or sanctions, and reimburse the City for any and all attorneys' fees and costs and sanctions received as a result. Section 7. If attorneys' fees, costs or sanctions are available for any reason to the Mayor in the course of his defense, including but not limited to the conduct of the Plaintiff or pleadings or motions filed by the Plaintiff against the Mayor, then the Mayor shall pursue such attorneys' fees, costs or sanctions. and reimburse the City for any and all attorneys' fees, costs and sanctions received as a result. Section 8. This Resolution shall become effective immediately upon its adoption and signature of the Mayor.' f the Mayor does not sign this Resolution, it shall become effective at the end of ten calendar days from the date it was passed and adopted. If the Mayor vetoes this Resolution, it shall become effective immediately upon override of the veto by the City Commission. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Westlaw, 544 So.2d 230, 14 Fla. L. Weekly 938, 14 Fla. L. (Cite as: 544 So.2d 230) District Court of Appeal of Florida, First District, eekly The CITY OF FORT WALTON BEACH, Appellant, v. Al GRANT, Appellee. Patricia THORNBER, John Franklin, and Al Grant, Appellants, v. The CITY OF FORT WALTON BEACH, Appellee. Nos. 87-1900, 88-99. April 14, 1989, Rehearings Denied June 30, 1989. City councilmen sued city for reimbursement of legal fees incurred in connection with defending themselves against various lawsuits arising from dismissal of city officials. The Circuit Court, Oka- loosa County, Erwin Fleet. J., entered judgment for councilmen on certain claims, and for city on others. Councilmen and city appealed. The District Court of Appeal, Barfield, J., held that: (1) legal fees of coun- cilman who was sued in federal civil rights action brought by dismissed city police chief were reim- bursable; (2) councilmen were not entitled to reim- bursement for legal fees involved in various lawsuits and administrative proceedings where they were not named parties; and (3) councilmen who were named in federal civil rights suit brought by dismissed police chief were improperly denied legal fees, by being deemed in had faith through having violated "Sun- shine Law" in process of deciding to dismiss chief, where bad -faith issue had not been raised in pleadings. Affirmed in part, reversed in part and remanded. Zehmer, J., concurred and dissented with written opinion. See also 534 So.2d 754, West Headnotes Page 1 230 111 Municipal Corporations 268 e=1.63 268 Municipal Corporations 268V Officers, Agents, and Employees 268V(A) Municipal Officers in General 268k161 Compensation 268k163 k. Reimbursement of Expend- itures. Most Cited Cases City councilman was entitled to reimbursement for legal fees, under statute providing for such reim- bursement where municipal employee prevails in suit, where dismissed city police chief brought federal civil rights action against councilman and then terminated action by voluntary dismissal. West's F.S.A. § 111.07. gi Municipal Corporations 268 €.163 268 Municipal Corporations 268V Officers, Agents, and Employees 268V(A) Municipal Officers in General 268k161 Compensation 268k163 k. Reimbursement of Expend- itures, Most Cited Cases City was not obligated to pay legal fees of city councilmen in defending various actions arising out of councilman's dismissal of city officials, as councilmen were riot named parties as required under statute providing for such reimbursement. West's F.S.A. 111.07. al Municipal Corporations 268 e=1034 268 Municipal Corporations 268XVI Actions 268k1034 k. Pleading. Most Cited Cases City's denial of claim for reimbursement of legal fees paid by city councilmen in defending lawsuit was improperly based on councilmen's alleged bad -faith conduct in holding meeting contrary to provisions of "Sunshine Law," as this ground was not raised in pleadings. West's F.S.A. § 111.07. Eli Municipal Corporations 26812163 0 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 544 So.2d 230, 14 Fla, L. Weekly 938, 14 Fla. L. Weekly 1230 (Cite as: 544 So.2d 230) 268 Municipal Corporations 268V Officers, Agents, and Employees 268V(A) Municipal Officers in General 268k161 Compensation 268k163 k. Reimbursement of Expend- itures. Most Cited Cases Councilmen seeking reimbursement for legal fees could not challenge applicability of standard for de- termining reasonable attorney fees as set forth in Su- preme Court decision, when they had amended their complaint in order to comply with those standards and their expert witness testified as to reasonableness of fees under such standards. f5j Municipal Corporations 268 €=1040 268 Municipal Corporations 268XVI Actions 268k1040 k. Costs. Most Cited Cases City councilmen, who had prevailed in lawsuit against city to compel reimbursement of legal fees paid to defend against lawsuit brought by dismissed police chief, were not entitled to legal fees incurred in action against city, as city had raised justiciable issues of law and fact in its defense. West's F.S.A. § 57.105. *231 James E. Moore of Moore & Moore, P.A., Ni- ceville, for City of Fort Walton Beach. George E. Day of George E. Day, P.A., Fort Walton Beach, for Thornber, Franklin and Grant. BARFIELD, Judge. These cases consolidated on appeal for record purposes only, originated from a six -count amended complaint filed by Fort Walton Beach Councilmen John Franklin, Patricia Thornber, and Al Grant, against the City of Fort Walton Beach. The Council- men sued under section 111.07, Florida Statutes (1981), for reimbursement of attorney's fees, ex- pended for private representation in several legal and administrative actions arising from the City Council's dismissal of the City Manager, Winston Walker, and the Police Chief and Director of Public Safety, Thomas B. Ray. In Case No. 87-1900, the City appeals from a final judgment in favor of Councilman Grant, In Case No. 88-99, Councilmen Thornber, Franklin Page 2 and Grant appeal from a trial court order dismissing counts II, III and V of their amended complaint and, Councilmen Thornber and Franklin appeal from final judgment in favor of the City. We affirm the judgment in Case No. 87-1900, and affirm in part and reverse in part the judgment in Case No. 88-99. In May 1981, Kate Bagley was elected Mayor of the City of Fort Walton Beach, and Thornber and Franklin were elected to the City Council. Al Grant and Jim Baughman were already Councilmen. In June 1981, and prior to being sworn into office, Franklin, Thornber and Bagley met privately at Bagley's home and apparently drafted several resolutions which were ultimately passed by the entire City Council at an open, public meeting on July 6, 1981 (the newly elected officials had been sworn into office on July 1, 1981). The resolutions called for the resignation of City Attorney Walter Smith, the dismissal of City Manager Walker, the appointment of Mayor Bagley as Acting City Manager, and the appointment of Michael Mead as City Attorney.—FNI Mayor Bagley, acting in the capacity of City Manager, then fired Police Chief Ray. FN I. Mead filled the position for a short while until Michael Chesser succeeded him in late July, 1981 and served until August, 1983. James Moore then became the City Attorney and is attomey of record for the City. A number of legal and administrative actions were filed in reaction to the resolutions, accusing the City Council of misconduct, particularly violation of the "Government in Sunshine Law." These actions formed the underlying legal basis for the councilmen's six -count amended complaint for statutory attorney's fees. In essence, the Councilmen alleged that the City had declined to represent them in the underlying*232 actions; that, as a result, they had to retain private counsel; and, that in each action, the Councilmen had prevailed and were entitled to reimbursement of at- torney's fees under section 111.07.rN3 FN2. Section 286.011, Florida Statutes (1981). The Sunshine Law provides, inter alia, that all public meetings at which official action is to be taken must be open to the public at all times, and that any resolution, rule, or formal action is void unless taken or 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 544 So.2d 230, 14 Fla. L. Weekly 938, 14 Fla. L. Weekly 1230 (Cite as: 544 So.2d 230) made at such a meeting. FN3. In pertinent part, section 111.07 au- thorizes a public body to provide an attorney for the defense of a public official in a civil lawsuit for acts arising out of the official's employment, except in tort actions where the official "acted in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property." If the public body is authorized under the statute to provide an attorney, and it fails to do so, then it shall "reimburse any such defendant who prevails in the action for court costs and reasonable attorney's fees." In count I, the Councilmen requested reim- bursement of attorney's fees incurred in defending a declaratory judgment action filed against the City by Joseph Wilson, a taxpayer and resident of the City.—EN4 The Councilmen alleged that they had to give deposi- tions in Wilson, in which they testified that former City Attorney Walter Smith had advised them that their presence at the private meeting would not violate the Sunshine Law. FN4, On July 8, 1981, Wilson filed an action for a declaratory judgment seeking to void the City Council's resolutions as violative of the Sunshine Law. Wilson v. City of Fort Walton Beach, Case No. 81-1411, Circuit Court, Okaloosa County, Wilson voluntarily dismissed the case on August 27, 1981. In count II, the Councilmen requested reim- bursement of fees and costs in bringing an action to enjoin recall petitions filed by citizens who sought removal of the Councilmen from public office on the basis of their alleged misconduct. aNi The Councilmen alleged that the attempted recalls had no basis in law or fact; that the petitions accused them of both civil and criminal misconduct which, if successful, would have laid a judicial predicate for money damages against the Councilmen; and, that they were therefore required to file the suit for injunctive relief. FNS. The recall petitions were filed on or about July 14, 1981 with the City Clerk, Charles Evans. On July 23, 1981, Council- men Thornber and Franklin filed an action in circuit court to enjoin the City Clerk and Page 3 Supervisor of Elections from processing the recall petitions. Thornber v. Evans, Case No. 81-1532, Circuit Court for Okaloosa County. On August 27, 1981, the trial court entered a permanent injunction finding that the recall petitions were untimely. In Count III, the Councilmen alleged that it was necessary for them to retain legal counsel to represent them in an administrative hearing on a grievance filed by Ray .—FN° In count IV, the Councilmen requested reimbursement of attorney's fees incurred in defending a federal civil rights action filed by Ray against the City, Mayor Bagley, and the City Council in their official and individual capacities.In count V, the Councilmen alleged that it was necessary for them to retain legal counsel to monitor a declaratory judgment action filed by Ray in circuit court. r=48 The Council- men alleged that if Ray had been successful in his declaratory judgment action, the Councilmen would have been subject to the claim of interference with his employment. Finally, in Count VI, the councilmen requested reimbursement of attorney's fees in the present action. FN6. On July 14, 1981, Ray appealed his termination on the basis of the alleged mis- conduct of Mayor Bagley and the City Council. In April 1982, the City Manager rejected the appeal by letter to Ray. FN7. In the civil rights lawsuit, Ray sought compensatory and punitive damages. Ray v. Bagley, et al., Case No. PCA 81-521 (N.D.Fla,1981). In May 1984, he settled with the City, Mayor Bagley in both capacities, and the Councilmen in their official capaci- ties, receiving reinstatement to his job in re- turn for a voluntary dismissal of the de- fendants. In July 1984, the Councilmen, in their individual capacities, settled with Ray and were also voluntarily dismissed. FN8. In 1982, Thomas Ray filed an action for a declaratory judgment against City Attorney Michael Chesser, alleging that he was enti- tled to have his dismissal reviewed by a ter- mination committee impaneled pursuant to the "grievance procedure" outlined in the City Ordinance Code. Ray v. Chesser, Case No, 82-91, Circuit Court for Okaloosa © 2013 Thomson Reuters, No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items 013 on 02-14-13 Todd B. Hannon 544 So.2d 230, 14 Fla. L. Weekly 938, 14 Fla. L. Weekly 1230 (Cite as: 544 So.2d 230) County. The trial court agreed with Ray and the City Attorney appealed. This court re- versed. Chesser v. Rav, 425 So.2d 92 (Fla. 1st DCA 1983). In January 1985, Judge G. Robert Barron granted the City's motion to dismiss *233 Counts II -VI for failure to state a cause of action upon which relief could be granted. Strictly construing section 111.07, the trial court found that the statute contemplated only reimbursement of attorney's fees for party -defendants, and prohibited the payment of attorney's fees on be- half of public officials who initiated litigation, (Count II). The court also found that the Councilmen were not legally required to defend the grievance petition filed by Thomas Ray, (Count III), and Ray's action in cir- cuit court against the City Attorney (Count V). In dismissing Count IV, the court granted leave to amend the count to allege that the Councilmen had requested the City to provide an attorney for their defense in the federal lawsuit, and that the request had been denied. Finally, the court found that section 111.07 did not contemplate reimbursement of attorney's fees for filing the present lawsuit (Count VI). In a subsequent order, the trial court found that the City had never moved to dismiss count I of the amended complaint, and that the Councilmen had successfully amended count IV, so that dismissal of that count was void!'" The Councilmen's appeal of the dismissal of Counts II, III and V, was dismissed by this court as untimely.FNIO FN9. After the initial order dismissing Counts II -VI, the Councilmen amended Count IV to allege that they had requested legal representation from former City At- torney Chesser in the federal lawsuit, who advised them that he had a conflict of interest due to the nature of the accusations made by Thomas Ray and could not represent both the Councilmen and the City, and that the Councilmen should retain private counsel. FNIO. The dismissal of Count VI was never challenged. In June 1985, the City filed its answer to the amended complaint, generally denying the allegations in count I, and asserting as an affirmative defense that the Councilmen were not named as party defendants in Wilson v. City of Fort Walton Beach, and did not intervene in the lawsuit, so that they were not entitled Page 4 to an award under section 111.07. As to Count IV, the City admitted that Thomas Ray had filed a civil rights lawsuit in federal court against the City, the Mayor and the City Council, but otherwise denied its liability for reimbursement of attorney's fees under section 111.07, and asserted as an affirmative defense that it had provided an attorney for the Councilmen in the federal lawsuit. In September 1985, the trial court entered an or- der granting the City's motion for summary judgment as to count I, finding that a genuine issue of material fact did not exist as to the Councilmen's request for reimbursement of attorney's fees relating to Wilson v. City of Fort Walton, in that the Councilmen were never named as individual defendants in that action. However, the trial court denied the motion for sum- mary judgment as to Count IV, finding that there was a genuine issue of material fact as to representation of the Councilmen in both their official and individual capacities in the federal lawsuit. In February 1987, the case proceeded to trial be- fore Judge Erwin Fleet on Count IV of the amended complaint. Councilwoman Thornber testified that after she was elected, but before she was sworn into office, she had attended the meeting at Mayor Bagley's home. The trial judge asked her whether the proposed resolutions were discussed at the meeting. Thornber replied that they had discussed firing Police Chief Ray and City Manager Walker. Thornber also testified that she gave a deposition in Wilson v. Citv of Fort Walton, and that her attorney, George Day, represented her at that deposition. She stated that City Attorney Chesser had advised her that he could not represent her in the federal lawsuit due to the conflict of interest and that he had told her to retain a private attorney to represent her in both her individual and official capacities. She stated that Day filed an answer and motion to dismiss in the federal case on her behalf in both her capacities, and although she entered into a written retainer with Day, it was her understanding that the City would be ultimately responsible for paying his fees. Councilman Grant testified that he had two or three conversations with City Attorney Chesser, who advised him that he *234 should also retain private representation in both capacities in the federal lawsuit. Grant also hired Day, but he never agreed to pay the attorney any fees because it was his understanding that the City was obligated. To the trial judge's inquiries C 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 544 So.2d 230, 14 Fla. L. Weeldy 938, 14 Fla. L. Weekly 1230 (Cite as: 544 So.2d 230) about the meeting at Bagley's home, Grant replied that he had not attended that meeting and that he never discussed any proposed resolutions with his fellow councilmen before the public meeting. Councilman Franklin testified that Michael Chesser had represented him at a deposition in the Wilson case before he became City Attorney, but that after he became City Attorney, Chesser advised Franklin to seek private counsel, suggesting Day. Franklin also testified that he never had an attor- ney/client relationship with Chesser in the federal lawsuit. To the judge's inquiries about the private meeting at Bagley's home, Franklin responded that it was a social function for coffee at which he, Bagley, Thornber and Bagley's private attorney, a Mr. Chan- dler from Washington, discussed the general state of the city and whether to retain City Manager Walker, but that no decision was reached. Franklin testified that prior to the public meeting on July 6, 1981, he had met with Chandler and former City Attorney Mead to discuss the chronological order of the proposed reso- lutions, which were drafted by Mead. Franklin stated that his decision to vote for Walker's dismissal was made 45 minutes before the public meeting. City Attorney Chesser testified by deposition that he represented the Councilmen in their official ca- pacities and that attorney Day represented them indi- vidually in the federal lawsuit. He stated that Mayor Bagley was represented in her individual capacity by a private attorney, and that Councilman Baughman also had an attorney to represent him in his individual capacity in the federal lawsuit. After the Councilmen rested their case on the is- sue of liability, the City moved for a directed verdict, arguing that it was not liable for the attorney's fees in the federal lawsuit because former City Attorney Chesser had represented the Councilmen in their of- ficial capacities. The trial court denied the motion, stating that "the record before the Court right now shows very emphatically that he [Chesser] never un- dertook to represent them [the Councilmen] in their official or individual capacity." The City was unable to show the trial court that Chesser filed a pleading on behalf of the Councilmen in their official capacities. In fact, the pleadings from the civil rights lawsuit showed that Chesser had filed a motion for extension of time to file an answer on behalf of Bagley and the City; that Day had filed an answer and a motion to dismiss on Page 5 behalf of councilmen Thornber, Franklin and Grant in their individual and official capacities; and, that Chesser had eventually filed an answer on behalf of the City only. After the City rested its case, the Councilmen presented evidence on the amount of a reasonable attorney's fee. George Day testified to the hours he expended and rates at which he billed his clients. Expert witness, attorney Pat Maney, testified that the hours and rates billed were reasonable, and that ap- plying Rowe, a reasonable fee for the services was $35,000. In October 1987, the trial court entered final judgment, finding that Councilmen Thornber and Franklin had violated the Sunshine Law by partici- pating in the "secret" meeting at Mayor Bagley's house, citing Tolar v. School Board of Liberty County, 398 So.2d 427 (F1a.1981), and, that as a result, thcy had acted in had faith under section 111.07 and were therefore not entitled to attorney's fees for their de- fense of the federal lawsuit. The court awarded re- imbursement of fees to Councilman Grant, who was not present at the "secret" meeting. The court also determined that the City had not asserted a frivolous defense in the present case and therefore the Coun- cilmen were not entitled to attorney's fees under sec- tion 57.105. Florida Statutes (Supp.1986). Councilmen Franklin and Thornber filed a motion for rehearing, alleging that they were surprised by part of the court's ruling. They attached affidavits which alleged that at the time of the "secret" meeting,*235 they were advised by former City Attorney Walter Smith that the meeting was not a Sunshine Law vio- lation. The City responded by filing a motion to strike the motion for rehearing. Councilmen Franklin and Thornber then filed a motion to amend the motion for rehearing, alleging that the Sunshine Law violation was neither pled nor tried by the parties' consent and that, in any event, the trial court had misapplied Tolar. The trial court denied the City's motion to strike and granted the Councilmen's motion to amend the motion for rehearing, but subsequently denied the motion for rehearing. The Councilmen then filed a motion to amend the order denying their motion for rehearing, which the trial court also denied. The City filed a notice of appeal, from that por- tion of the final judgment awarding fees to Council- © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 544 So.2d 230, 14 Fla. L. Weekly 938, 14 Fla. L. Weekly 1230 (Cite as: 544 So.2d 230) man Grant (Case No. 87-1900). Councilmen Thorn - her, Franklin and Grant filed a two-part notice of appeal (Case No. 88-99). In Part I, all three Council- men appealed the trial court's order dismissing Counts II, III and V of their amended complaint. In Part II, Councilmen Thornber and Franklin appealed the final judgment denying them reimbursement of reasonable attorney's fee pursuant to Counts I and IV of their amended complaint.FNI I FN11. In their notice of appeal, Part II, the Councilmen mistakenly assert that their cause went to trial on both Counts I and IV. Count I was dismissed by summary judgment and is not challenged on appeal. IL CASE NO. 87-1900 The City's first point on appeal is that the trial court erred in entering judgment in favor of Coun- cilman Grant because the City did, in fact, defend Grant in his official capacity in the federal lawsuit. This argument fails because the testimony at trial and the pleadings of the federal lawsuit support a finding that the City never provided an attorney to defend Councilman Grant or any of the other Councilmen in the federal lawsuit, in any capacity. 11 [ The City's second point on appeal is that Grant did not prevail in the federal lawsuit. Therefore, he was not entitled to attorney's fees under section 111.07. We disagree and affirm the trial court's award of attorney's fees pursuant to section 111.07, based on the authority of Metropolitan Dade County v. Evans, 474 So.2d 392 (Fla. 3d DCA 1985). In general, when a plaintiff takes a voluntary dismissal the defendant is the prevailing party. Stuart Plaza, Ltd. v. Atlantic' Coast Dev. Corp. of Martin County, 493 So.2d 1136 (Fla. 4th DCA 1986). In Evans, a police officer and the county were sued in a civil action for damages which arose out of the officer's official duties. The officer was dismissed with prejudice as a result of a settle- ment negotiated by the county. The trial court found that the officer had "prevailed" and therefore, was entitled to reimbursement of his attorney's fees pur- suant to section 111.07, Florida Statutes (1983). The appellate court affirmed, stating that "the dismissal operated to terminate any proceeding against the of- ficer ... a merits determination is not a prerequisite to an award of attorney's fees where the statute provides that they will inure to the party who prevails." 474 Page 6 So.2d at 393. In the instant case, Grant prevailed be- cause the dismissal with prejudice in the federal law- suit signalled an end to the litigation against him and under these circumstances a merits determination was not necessary. 111. CASE NO. 88-99 A. [21 In Part I of their appeal, the Councilmen assert that the trial court erred in dismissing Counts II, III and V, and finding that they had to be named party defendants in the underlying actions in order to be reimbursed for attorney's fees under section 111.07. They contend that a public official is entitled to re- imbursement of reasonable attorney's fees where a municipality refuses to provide counsel to defend the official, regardless of the fact that the official was not sued directly, citing *236Lomelo v. City of Sunrise, 423 So.2d 974 (Fla. 4th DCA 1983), rev. dism. 431 So.2d 988 (F1a.1983), and Ferrara v. Caves, et al., 475 So.2d 1295 (Fla. 4th DCA 1985). The City re- sponds that this court should strictly construe section 111.07, therefore, the Councilmen were not entitled to attorney's fees because they were not defendants in the underlying actions referred to in Counts II, III, and V of the amended complaint. Section 11.1.07 recognizes the common law doc- trine that a public officer is entitled to an attorney at the expense of the public in litigation arising from the performance of his official duties while serving a public purpose. Nuzum v. Valdes, 407 So.2d 277 (Fla. 3d DCA 1981); Ellison v. Reid, 397 So.2d 352 (Fla. 1st DCA 1981); Markham v. State Dept. of Revenue, 298 So.2d 210 (Fla. lst DCA 1974); Duplig v. City of South Daytona 195 So.2d 581 Fla. lst DCA 1967 ; Peck v. Spencer 26 Fla. 23, 7 So. 642 (1890). The purpose of the rule is to avoid a "chilling effect" that a denial of representation might have on a public official in performing his duties properly and diligently. Nuzum, 407 So.2d at 279. Section 111.07 "is designed to prevent municipal officers from having to pay the expenses of litigation incurred in the performance of their official duties." Wright v. Acierno, 437 So.2d 242 (Fla. 5th DCA 1983). While the statute does not mandate a public body to defend an employee, Greer v. Mathews. 409 So.2d 1105 (Fla. 1st DCA 1982), it does require the public body to reimburse the em- ployee for private representation in actions arising out of his official duties. Section 111.07. Florida Statutes 0 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 544 So.2d 230, 14 Fla. L. Weekly 938, 14 FlaWeekly 1230 (Cite as: 544 So.2d 230) (1981). Statutes authorizing the award of attorney's fees are considered in derogation of common law so as to require strict construction. Encompass Incorporated v. Alford, 444 So.2d 1085 (Fla. lst DCA 1984). Section 111.07 requires reimbursement of attorney's fees to a prevailing defendant in a civil action arising from a complaint for damages or injuries suffered as a result of the official acts or omissions of public officials or employees. In neither the suit for injunctive relief filed by the Councilmen, nor the grievance petition and circuit court action filed by Ray, were the Councilmen prevailing defendants as required by section 111.07. Therefore, the statute was never activated, and the trial court correctly dismissed Counts 11, III and V of the amended complaint. In Lomelo, the mayor of Sunrise City was indicted for corruption by threat against a public servant, and suspended from office, Because of the suspension the city attorney refused to represent him and the mayor retained private counsel. The mayor was acquitted and the city declined to pay the mayor's attorneys fees. The mayor then filed a declaratory judgment action. The trial court affirmed the city's denial of fees, find- ing that the city had no duty to pay. The Fourth DCA reversed, stating that: a municipal corporation or other public body is obligated to furnish or pay fees for counsel to defend a public official subjected to attack either in civil or criminal proceedings where the conduct complained of arises out of or in connection with the performance of his official duties. This obligation arises inde- pendent of statute, ordinance or charter. It is not sub- ject to the discretion of the keepers of the city coffers. 423 So.2d at 976. In Ferrara v. Caves, Ferrara filed recall petitions with the town clerk, seeking the removal of three town commissioners due to their vote on a proposed rent stabilization ordinance. The commissioners filed an action for declaratory and injunctive relief against the deputy town clerk and the town, alleging that the recall petitions were legally insufficient. Ferrara in- tervened in the action as an indispensable party. Subsequently, the parties entered into a stipulation that the recall petitions were illegal and void and the court entered a final judgment pursuant to the stipulation, Page 7 finding the petitions legally insufficient and perma- nently enjoining the town clerk from processing them. The commissioners then filed a motion for attorney's fees against the town, citing Lomelo. The trial court denied the fees and the commissioners appealed. The appellate court reversed, holding*237 that, although the commissioners themselves instituted the declara- tory and injunctive action, it "was an effort to defend against charges of misconduct and that in the spirit of Lornelo the town is required in line with case law to pay reasonable attorney's fees...." 475 So.2d at 1300. The court found that the recall petitions were based upon actions that the commissioners took as public officials, Id. While we find Lomelo to be a sound embodiment of the common law as recognized in section 111.07, it is inapplicable to the present case. In Lomelo, the parties agreed that no state statute, city ordinance or provision of the city charter authorized or required reimbursement of attorney's fees in that case. 423 So.2d at 975. The probable reason for this stipulation was that section 111.07 only applies to defense of civil actions. Additionally, the mayor in Lomelo was a defendant to a felony indictment, unlike the Coun- cilmen in the present case, who were only named defendants in the federal civil rights action. We also find Ferrara inapplicable. The Ferrara court did not address the propriety of an attorney's fee award under section I I 1.07. The court simply construed the "spir- it'of the common law principles as delineated in Lomelo, to include actions in equity instituted to combat recall petitions which charged the public of- ficials with misconduct in office. Such a construction would be improper under section 111.07, which re- quires reimbursement of attorney's fees to defendants who prevail in civil actions "arising from a complaint for damages or injury." Therefore, we hold that sec- tion 111.07 does not require the City of Fort Walton Beach to reimburse the Councilmen for reasonable attorney's fees and costs expended to initiate the lawsuit to enjoin the recall petitions; nor is the City obligated for any fees or costs incurred by the Coun- cilmen relating to the grievance petition or circuit court action filed by Thomas Ray. Accordingly, we affirm the trial court's order dismissing Counts II, III and V of the amended complaint. B. In Part II of their appeal, Councilmen Thomber and Franklin raise two issues for this court's review: 0 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items 0I.3 on 02-14-13 Todd B. Hannon 544 So.2d 230, 14 Fla. L. Weekly 938, 14 Fla. L. Weekly 1230 (Cite as: 544 So.2d 230) (1) Whether the trial court properly tried issues relat- ing to violations of the Sunshine Law; and, if so, (21 whether the trial court correctly applied and inter- preted the Sunshine Law in light of Tolar v. School Board of Liberty County, 398 So.2d 427 (F1a.1981). Because we Lind that the trial court improperly tried the Sunshine Law issues, we decline to address the merits of the trial court's finding that the Sunshine Law violation constituted "bad faith" action negating an award of attorney's fees pursuant to section 111.07. 13] The City never pled as an affirmative defense that the Councilmen violated the Sunshine Law and that such violation constituted "bad faith" action ne- gating an award of attorney's fees under section 111.07. The evidence regarding this defense was elicited by Judge Fleet in his inquiries of the Coun- cilmen at trial. Although the Councilmen never ob- jected to the trial judge's questioning, the issue of a Sunshine Law violation as "bad faith" action was never raised by the parties in the pleadings or at trial. Under these circumstances it was improper for Judge Fleet to try the issue. In general, legal issues not raised in pleadings are deemed waived and may be tried only with the express or implied consent of the parties. Hart Properties. Inc. v. Slack, 159 So.2d 236 (Fla.1964); Bilow v. Benoit, 519 So.2d 1 1 14 (Fla. 1st DCA 1988); F1a.R.Civ.P. 1.140(b) (h); 1,190(b). The City argues that the Sunshine Law issues were tried by consent of the parties. This argument fails for several reasons. Neither party expressly or implicitly raised the "bad faith" issue; the trial judge elicited the evidence from which he made his findings. Even if the evidence was relevant (and admissible) to the issues framed by the parties, it was inappropriate to imply from it a consent to try an issue not pleaded. See Rahaim v. City of Jacksonville, 504 So.2d 1323 (Fla. 1st DCA 1987) (where the trial court was never moved to amend the issues pursuant to rule 1.190(b), *238 nor where it ever ruled that the unpleaded issues were tried by implication, an appellate court is espe- cially precluded from implying a consent to try the unpleaded issues). Additionally, the Councilmen's failure to object to Judge Fleet's questioning regarding the "secret" meeting cannot he construed as implied consent to try Sunshine Law issues, where the ques- tioning may have been relevant to the issues presented in the pleadings, and the Councilmen would have no reason to object. See Bilow, 519 So.2d at 1116. We find that the final judgment denying Councilmen Page 8 Thornber and Franklin attorney's fees based upon their "had faith" conduct of violating the Sunshine Law was outside the issues raised in the pleadings or at trial. Accordingly, we reverse. See Freshwater v. Vetter, 511 So.2d 1114 (Fla. 2d DCA 1987) (judgment made upon issue outside pleadings is voidable on appeal). C. 141151 The Councilmen raise two additional issues in their appeal. First, they challenge the applicability of the standard for determining reasonable attorney's fee as set forth in Fla. Patient's Compensation Fund v. Rowe, 472 So.2d 1 145 (FIa.1985 ). We conclude that the Councilmen have waived any challenge to the applicability of Rowe. Not only did they amend their amended complaint in order to comply with Rowe, but their expert witness on attorney's fees, Pat Maney, testified as to the reasonableness of fees under the Rowe standard. Second, the Councilmen appeal the trial court's denial of fees under section 57.105, Flor- ida Statutes (Supp.1986). Since the City presented justiciable issues of both law and fact in their defense, we affirm the trial court's order denying attorney's fees under section 57.105. IV. In summary, we AFFIRM the City's appeal from the final judgment awarding reimbursement of attor- ney's fees to Councilman Grant, in Case No. 87-1900. In Case No. 88-99, we AFFIRM the trial court's order dismissing Counts II, III and V of the amended com- plaint. However, we REVERSE the final judgment denying Councilmen Thornber and Franklin recovery under Count IV of their amended complaint, and REMAND for the trial court to enter judgment for them consistent with Grant's award. SHIVERS, J., concurs. ZEHMER, J., concurs and dissents with written opinion. ZEHMER, Judge (concurring and dissenting). I fully concur in the court's opinion in all respects save one: I dissent from the affirmance of the order in case number 88-99 dismissing count II of the amended complaint. The trial court denied the prayer for attorney's fees with respect to count II solely on the rationale that appellants were not named defendants in the civil action alleged in that count and thus did not fall within the language of section 111.07. Florida Statutes, enti- 0 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. 544 So.2d 230, 14 Fla. L. Weekly 938, 14 Fla. L. Weekly 1230 (Cite as: 544 So.2d 230) tling them to attorneys fees. I believe this construction of the statute is much too strict, and the decision is not in keeping with the decisional law of this state. Count II alleged a claim for reimbursement of attorney's fees in connection with a declaratory judgment action tiled by appellants that resulted in the court's enjoining enforcement of the invalid and illegal recall petitions addressed to appellants. In Ferrara v. Caves, 475 So.2d 1295 (Fla. 4th DCA 1985), the court held that under the common law certain commission- ers were entitled to have the city pay their attorney's fees incurred in filing a declaratory judgment action to have the recall petitions filed against them declared invalid and illegal and enjoin the enforcement thereof. There seems to be no question that the common law recognizes a right of governmental officers to reim- bursement for legal services performed for such of- ficer to establish or defend the officer's legal right to act in that capacity, whether or not the officer is sued directly as a defendant. *239Lomelo v. City of Sunrise, 423 So.2d 974 (Fla. 4th DCA), rev. dism. 431 So.2d 988 (F1a.1983). See also, White v. Crandon, 116 Fla. 162, 156 So. 303 (1934). I can find no valid distinction between the facts in Ferrara and in this case. I con- clude, therefore, that the affirmance of the dismissal of count II in this case amounts to a direct conflict with Ferrara. The majority opinion predicates its holding en- tirely on a strict construction of section 111.07 as requiring that the officer actually be named as a de- fendant in the court proceeding in order to be entitled to reimbursement of attorneys fees. It should be noted that the court in Ferrara did not mention section 111.07 in reaching its result, apparently preferring to rest its decision on the common law doctrine. Ap- parently, the majority in the instant case has deter- mined, without explicitly saying so, that the subject statute has completely displaced the common law doctrine. Moreover, the majority applies a strict con- struction to the statute upon the stated proposition that the award of attorney's fees is in derogation of the common law, citing Encompass Incorporated v. Al- ford, 444 So.2d 1085 (Fla. 1st DCA 1984), a case that involved a statutory provision for attomey's fees in a private dispute involving a mechanic's lien. But that case has no precedential value in respect to the ques- tion now before us because, as cited above and con- ceded by the majority opinion, "section 111.07 rec- ognizes the common law doctrine that a public officer Page 9 is entitled to an attorney at the expense of the public in litigation arising from the performance of his official duties while serving a public purpose,- Supra at 236. The fact that the five cases cited by the majority in support of this stated proposition all involved cases in which the officers were named as defendants does not necessarily serve to limit the application of the com- mon law doctrine to named defendants only nor mandate a strict construction of the statute as so modifying and limiting the common law doctrine. 1 do not believe, therefore, that the statute should be strictly construed to require appellants to be named as a de- fendant in the court action to recover such fees. All that is necessary to recover such fees is that the officer employ the attorney's services for the purpose of es- tablishing, protecting, and defending the officer's legal right to act in his official capacity in the manner al- leged; whether the attorney, in the exercise of his professional judgment, elects to initiate a court action to achieve that purpose or simply to wait until others initiate such action is immaterial in my view, for to so construe the statute would significantly deprive the public officer of the full benefit of his attorney's ex- pertise and the protections that can be afforded by a court action. Either the majority opinion is in error, or the Fourth District's opinion in Ferrara is in error; both cannot stand as valid, reconcilable law. Since I agree with Ferrara, 1 would reverse the dismissal of count IL F1a.App. 1 Dist.,1989. City of Fort Walton Beach v. Grant 544 So.2d 230, 14 Fla. L. Weekly 938, 14 Fla. L. Weekly 1230 END OF DOCUMENT 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items D1.3 on 02-14-13 Todd B. Hannon Westlaw. 181 So. 153 132 Fla. 334, 181 So. 153 (Cite as: 132 Fla. 334,181 So. 153) Supreme Court of Florida. CITY OF WINTER HAVEN et al. v. A. M KLEMM & SON.F—"' FN* Rehearing denied 182 So. 841. April 5, 1938. Rehearing Denied May 18, 1938. Suit by A. M. Klemm & Son against the City of Winter Haven and others to enjoin municipal taxation of described land. From adverse interlocutory decrees, defendants appeal. Reversed and remanded for further proceedings. West Headnotes u Taxation 371 €='2712 371 Taxation 371III Property Taxes 371III(H) Levy and Assessment 371III(H)10 Judicial Review or Intervention 371k2712 k. Injunction to restrain as- sessment. Most Cited Cases (Formerly 371k498) Illegal taxation of lands may be enjoined. u Constitutional Law 92 €'990 92 Constitutional Law 92VI Enforcement of Constitutional Provisions 92VI(C) Determination of Constitutional Questions 92VI(C)3 Presumptions and Construction as to Constitutionality 92k990 k. In general. Most Cited Cases (Formerly 92k48(1), 92k48) Judgment 228 €'524 Page 1 228 Judgment 228XII Construction and Operation in General 228k524 k. Application of general rules of construction. Most Cited Cases Statutes, judgments, and decrees should be so construed and applied that the intended purpose will be effectuated consistently with applicable provisions of the paramount organic law. f_3]. Constitutional Law 923869 92 Constitutional Law 92XXVII Due Process 92XXVII(B) Protections Provided and Dep- rivations Prohibited in General 92k3868 Rights, Interests, Benefits, or Privileges Involved in General 92k3869 k. In general. Most Cited Cases (Formerly 92k251) Personal and property rights intended by the Constitution to be secured to those lawfully claiming them should be protected and enforced by due course of law when no applicable express or implied provi- sion of the State or Federal Constitution is thereby violated. u Constitutional Law 92 €1109 92 Constitutional Law 92VII Constitutional Rights in General 92VII(B) Particular Constitutional Rights 92k1108 Right to Property 92k1109 k. In general. Most Cited Cases (Formerly 92k87) Where a command or prohibition of the Consti- tution is violated in the creation or production of the subjects of property or in the acquisition of interest therein, such interests are not rights intended by the Constitution to be secured, and they will not be pro- tected or enforced in the courts. u Judgment 228 €564(1) © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 181 So, 153 132 Fla. 334, 181 So. 153 (Cite as; 132 Fla. 334, 181 So. 153) 228 Judgment 228X111 Merger and Bar of Causes of Action and Defenses 228X111(A) Judgments Operative as Bar 228k564 Finality of Determination 228k564(l) k. In general. Most Cited Cases Where municipal interest -bearing negotiable bonds for authorized municipal public improvement purposes were validated by decrees of circuit court under express statutory authority in proceedings to which all citizens and taxpayers of municipality were made parties by statute, validation or issue of bonds was not contested, and no appeals were taken from validating decrees, those decrees became res judicata. Sp.Acts 1925, cc. 11299, 11301. fAl Quo Warranto 319 C=64 319 Quo Warranto 31911 Procedure 319k64 k. Operation and effect of ouster or forfeiture. Most Cited Cases A quo warranto judgment ousting a city from exercising jurisdiction over an added area on ground that area was not covered by subject expressed in title to act establishing city's territorial limits did not affect city's de facto jurisdiction over added area, since Legislature had power by statute to incorporate added area in city, and quo warranto judgment could not change city's statutory boundaries. Sp,Acts 1925, c. 11301; F.S.A.Const. art. 3, § 16. al Statutes 361 C=63 361 Statutes 3611 Enactment, Requisites, and Validity in Gen- eral 361k63 k. Effect of total invalidity. Most Cited Cases Statutes 361 C=64(1) 361 Statutes 3611 Enactment, Requisites, and Validity in Gen- eral 361k64 Effect of Partial Invalidity Page 2 361k64(1) k. In general. Most Cited Cases Where a statute or part of a statute establishing or relating to a municipality's jurisdiction and powers violates command or prohibition of the Constitution relating not merely to form of exercise of legislative power but to nature or character of subject matter of statute, such a statute or portion thereof may be adju- dicated to he invalid and inoperative ab initio and could not be validated by statute or judicial decree, and no rights or correlative obligations may arise under such an invalid statute or portion thereof. F.S.A.Const, art. 3, §§ 16. 30; art. 9, §§ 7; art. 12, § 17. 2_31 Quo Warranto 319 €'64 319 Quo Warranto 31911 Procedure 319k64 k. Operation and effect of ouster or forfeiture. Most Cited Cases Where a city, which had exercised authority over lands annexed by a presumptively valid statute, was ousted from jurisdiction over lands by quo warranto judgment on ground that title of statute was not suffi- ciently comprehensive to embrace lands, city had and continued to have de facto jurisdiction to tax those lands to pay city's operating expenses before rendition of judgment of ouster and to pay its duly authorized municipal bonds. Sp.Acts 1925, cc. 11299, 11301: F.S.A.Const. art. 3, § 16; art. 8, § 8; art. 9, §§ 3, 5. f_Soi Municipal Corporations 268 C`3 268 Municipal Corporations 2681 Creation, Alteration, Existence, and Disso- lution 2681(A) Incorporation and Incidents of Ex- istence 268k3 k. Power to create. Most Cited Cases The right to establish a municipality does not exist in individuals, but is conferred by the state. F.S.A.Const. art. 3, § 24; art. 8, § 8. f 101 Municipal Corporations 268 C=1 268 Municipal Corporations 2681 Creation, Alteration, Existence, and Disso- lution © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 181 So. 153 132 Fla. 334, 181 So, 153 (Cite as: 132 Fla. 334, 181 So. 153) 268I(A) Incorporation and Incidents of Ex- istence 268k7 k. Territory which may be included. Most Cited Cases The inhabitants of a community have no authority to incorporate in the same municipality two distinct detached tracts of land, and an attempt to do so is void, but a statute may incorporate into a municipality two separate and noncontiguous tracts. fJ Municipal Corporations 268 €='6 268 Municipal Corporations 268I Creation, Alteration, Existence, and Disso- lution 268I(A) Incorporation and Incidents of Ex- istence 268k6 k. Bodies which may be incorporated. Most Cited Cases A community of people and a territory of suffi- cient area for inhabitants to have human contacts creating a community of public interest and a duty requiring an organized governmental agency for the management of their local affairs of a quasi public nature must exist as a basis for the establishment of a municipality under statute, fill Municipal Corporations 268 c7 268 Municipal Corporations 268I Creation, Alteration, Existence, and Disso- lution 268I(A) Incorporation and Incidents of Ex- istence 268k7 k. Territory which may be included. Most Cited Cases The power to establish a municipality may not be exercised to incorporate an area having no resident population or a very small resident population, where area is not suitable for municipal purposes, or where area cannot be benefited by municipality or its public facilities or improvements, and cannot be needed for a reasonably expected growth of municipality. fill Municipal Corporations 268 €966(2) 268 Municipal Corporations Page 3 268XIII Fiscal Matters 268XIII(D) Taxes and Other Revenue, and Application Thereof 268k966 Persons and Property Taxable 268k966(2) k. Property outside of city limits. Most Cited Cases The constitutional command, that when a mu- nicipality is abolished provision should be made for protection of its creditors, contemplates that when lands are withdrawn from a municipality, they should continue to be liable to taxation for municipality's debts unless creditors are otherwise fully protected. F.S.A.Const. art. 8, § 8. f1,11 Municipal Corporations 268 € 8 268 Municipal. Corporations 268I Creation, Alteration, Existence, and Disso- lution 268I(A) Incorporation and Incidents of Ex- istence 268k8 k. Special charters or acts. Most Cited Cases A statute incorporating lands into a municipality is not ipso facto or prima facie unconstitutional on ground that some of the lands may be adjudged to be unsuited for municipal purposes, or that some of the lands cannot be benefited by incorporation, since those matters are within legislative judgment. !IL Constitutional Law 92 0=990 92 Constitutional Law 92VI Enforcement of Constitutional Provisions 92VI(C) Determination of Constitutional Questions 92V1(C)3 Presumptions and Construction as to Constitutionality 92k990 k. In general. Most Cited Cases (Formerly 92k48(1), 92k48) Constitutional Law 92 € --'3874(1) 92 Constitutional Law 92XXVII Due Process 92XXVII(B) Protections Provided and Dep- rivations Prohibited in General 92k3868 Rights, Interests, Benefits, or © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items D1,3 on 02-14-13 Todd B. Hannon 181 So. 153 132 Fla. 334, 181 So, 153 (Cite as: 132 Fla. 334, 181 So. 153) Privileges Involved in General 92k3874 Property Rights and Interests 92k3874(1) k. In general, Most Cited Cases (Formerly 92k87) A statute not patently unconstitutional on its face is prima facie and presumptively valid, and rights acquired bona fide under such a statute are "property rights" protected by the State and Federal Constitu- tions. J161 Constitutional Law 92 €;='990 92 Constitutional Law 92V1 Enforcement of Constitutional Provisions 92V1(C) Determination of Constitutional Questions 92V1(C)3 Presumptions and Construction as to Constitutionality 92k990 k. In general. Most Cited Cases (Formerly 92k48(1), 92k48) Statutes that are not patently unconstitutional on their face are prima facie and presumptively constitu- tional, and they remain so, subject to be duly adjudi- cated in conflict with express or implied provisions of Constitution in whole or in part or to be otherwise inoperative. [171 Statutes 361 €=.109.2 361 Statutes 361111 Subjects arid Titles of Acts 361k109.1 Form. Requisites, and Sufficiency of Title 361k109.2 k. In general; generality and comprehensiveness. Most Cited Cases (Formerly 92k48(4.1), 92k48(4), 92k48) Courts do not adjudge a provision of statute un- constitutional because not expressed in title, unless title is misleading, and violation appears beyond a doubt. F.S.A.Const. art. 3. § 16. [181 Statutes 361 0=105(2) 361 Statutes 361111 Subjects and Titles of Acts 361k105 Constitutional Requirements and Page 4 Restrictions 361k105(2) k. Construction as mandatory or directory. Most Cited Cases The constitutional provision requiring each law to embrace but one subject and matter properly con- nected therewith and that subject should be brietly expressed in title is mandatory, and a legislative en- actment violating that provision is invalid ab initio. F.S.A.Const. art. 3, § 16. 1191 Statutes 361 €:;='109.2 361 Statutes 361111 Subjects and Titles of Acts 3611(109.1 Form, Requisites, and Sufficiency of Title 361k109.2 k. In general; generality and comprehensiveness. Most Cited Cases (Formerly 92k45) The question whether a portion of a statute is embraced in subject expressed in title, or whether it is matter properly connected with subject expressed in title, must be determined as a matter of law. F,S,A.Const. art. 3, § 16. 1201 Statutes 361 €='109.2 361 Statutes 361111 Subjects and Titles of Acts 361k109.[ Form, Requisites, and Sufficiency of Title 361k109.2 k. In general; generality and comprehensiveness. Most Cited Cases (Formerly 92k48(4.1), 92k48(4), 92k48) A portion of a statute is prima facie and pre- sumptively sufficiently covered by title, unless it is patently obvious that it is not covered, and, if portion does not appear to be covered by title as required by constitution, that fact must be shown by evidence aliunde in appropriate judicial proceedings. F.S,A.Const. art. 3, § 16. 1211 Federal Courts 170B €'386 170B Federal Courts 170BVI State Laws as Rules of Decision 170BVI(B) Decisions of State Courts as Au- © 2013 Thomson Reuters. No Claim to Orig. US Gov, Works. Submitted into the public record in connection with items D1.3 on 02-14-13 Todd B. Hannon 181 So. 153 132 Fla. 334, 181 So. 153 (Cite as: 132 Fla. 334, 181 So. 153) thority 170Bk386 k. State constitutions and stat- utes, validity and construction. Most Cited Cases (Formerly 106k366(1)) Whether a portion of a statute is sufficiently covered by title as required by State Constitution is a matter for state, and not for federal jurisdiction. Const. art. 3, § 16. 1221 Municipal Corporations 268 €17 268 Municipal Corporations 268I Creation, Alteration, Existence, and Disso- lution 268I(A) Incorporation and Incidents of Ex- istence 268k17 k. De facto corporations. Most Cited Cases Where there is a prima facie and presumptively valid statutory de jure municipality or prima facie and presumptive jurisdiction over an added area to mu- nicipality's boundaries, there may be de facto munic- ipal existence or jurisdiction; but, if there is no au- thority for conferring de jure municipal jurisdiction, there can be no de facto jurisdiction. Page 5 283I(D) De Facto Officers or Employees 283k40 k. Existence of office or position and de facto offices or employments. Most Cited Cases There can be no de facto officer if there is no of- fice and no authority to create an office; but, if Leg- islature has authority to create an office and by statute defectively exercises authority, or if there is no de jure officer, there may be a de facto officer under color of authority. 1241 Corporations and Business Organizations 101 €1195 101 Corporations and Business Organizations 101III Incorporation and Organization 101III(F) Validity of Incorporation 101k1193 De Facto Corporations 101k1195 k. Nature and requisites in general. Most Cited Cases (Formerly 101k28(1)) There can be no de facto corporation unless a de jure corporation could have been created by a valid statute, or unless a de jure corporation is attempted to be created in substantial compliance with legal au- thority. 1231 Administrative Law and Procedure 15A �132 1251 Municipal Corporations 268 966(1) 15A Administrative Law and Procedure 15AII Administrative Agencies, Officers and Agents 15Ak132 k. De facto agencies, officers and agents. Most Cited Cases Administrative Law and Procedure 15A €=.321 15A Administrative Law and Procedure 15AIV Powers and Proceedings of Administrative Agencies, Officers and Agents 15AIV(A) In General 15Ak321 k. De facto agencies, officers and agents. Most Cited Cases Officers and Public Employees 283 €40 283 Officers and Public Employees 283I Appointment, Qualification, and Tenure 268 Municipal Corporations 268XIII Fiscal Matters 268XIII(D) Taxes and Other Revenue, and Application Thereof 268k966 Persons and Property Taxable 268k966C1) k. In general. Most Cited Cases The constitutional provision requiring munici- palities to make their own assessments for municipal purposes on property within their limits does not for- bid municipal taxation of land included in municipal- ity's limits by statute, even though jurisdiction be ousted from that land, where rights have been acquired predicated upon de facto power to tax land before jurisdiction was ousted. F.S.A.Const. art. 9, § 5. 1261 Constitutional Law 92 €2698 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 181 So. 153 132 Fla. 334, 181 So. 153 (Cite as: 132 Fla. 334, 181 So. 153) 92 Constitutional Law 92XXII Obligation of Contract 92XXII(B) Contracts with Governmental En- tities 92XXII(B)2 Particular Issues and Applica- tions 92k2698 k. Contracts with municipal corporations in general. Most Cited Cases (Formerly 92k121(2)) The exclusion of lands from a municipality by statute after organic rights have been acquired violates the obligation of contracts, contrary to State and Fed- eral Constitutions. F.S.A,Const, Declaration of Rights, § 17; U.S.C.A.Const. art. 1, § 10. j271 Constitutional Law 92114056 92 Constitutional Law 92XXVII Due Process 92XXVII(G) Particular Issues and Applica- tions 92XXVII(G)2 Governments and Political Subdivisions in General 92k4056 k. Creation, alteration, and regulation. Most Cited Cases (Formerly 92k278(2)) The ouster of municipal jurisdiction over an area in city's statutory limits by judgment after organic rights have accrued would be the deprivation of ,'property rights" without "due process of law," if area does not remain subject to appropriate taxation. J281 Municipal Corporations 268 Q9 268 Municipal Corporations 2683011 Fiscal Matters 268XII1(C) Bonds and Other Securities, and Sinking Funds 268k909 Purposes of Issue of Bonds 268k911 k. Public improvements. Most Cited Cases Municipal Corporations 268 €3.966(1) 268 Municipal Corporations 268XIII Fiscal Matters 268XIII(D) Taxes and Other Revenue, and Application Thereof Page 6 268k966 Persons and Property Taxable 268k966( 1) k. In general. Most Cited Cases Negotiable bonds to be paid by taxation issued by de jure municipality pursuant to valid statutory au- thority, and sold bona fide to obtain funds for author- ized municipal public improvement purposes, are binding contract obligations to be paid by taxation upon all taxable property within municipality at time bonds were issued and sold, unless otherwise provided in law or proceedings authorizing issuance of bonds. J291 Statutes 361 $::::'120(2) 361 Statutes 361111 Subjects and Titles of Acts 361k110 Titles and Provisions of Acts Relat- ing to Particular Subjects 361k120 Counties, Towns, and Municipal Corporations 361kI20(2) k. Incorporation, alteration, and dissolution of municipalities. Most Cited Cases The restrictive title of an act attempting to include certain lands within the boundaries of a city rendered invalid that portion of body of act which was not covered by subject expressed in title, and that partial invalidity did not go to Legislature's power to include lands in city but to contents of title as used in ex- pressing subject of act wthereby Legislature's power was exercised. Sp.Acts 1925, c. 11301; F.S.A.Const. art. 3, § 16. J301 Statutes 361 €='109.2 361 Statutes 361E1 Subjects and Titles of Acts 361k109.1 Form, Requisites, and Sufficiency of Title 361k109.2 k. In general; generality and comprehensiveness. Most Cited Cases (Formerly 36 I k109.1, 361k109) The constitutional command, that each law en- acted should embrace but one subject and matter properly connected therewith and that subject should be briefly expressed in title, requires title to briefly express the subject of pending enactment so that the nature of the subject of the act may be truly indicated 0 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items D1.3 on 02-14-13 Todd B. Hannon 181 So. 153 132 Fla. 334, 181 So. 153 (Cite as: 132 Fla. 334,181 So. 153) by reading the title. F.S.A.Const. art. 3, § 16. 1J Statutes 361 €120(2) 361 Statutes 361III Subjects and Titles of Acts 361k110 Titles and Provisions of Acts Relat- ing to Particular Subjects 361k120 Counties, Towns, and Municipal Corporations 361k120(2) k. Incorporation, alteration, and dissolution of municipalities. Most Cited Cases (Formerly 92k48(4.1), 92k48(4), 92k48) An act adding to the area of a city the area of an abolished city and other lands not theretofore incor- porated was in its entirety prima facie and presump- tively valid, and that status remained until, in quo warranto proceedings, a portion of the act was shown aliunde and adjudged to have been illegally included under the restrictive title of the act. Sp.Acts 1925, c. 11301; F.S.A.Const. art. 3, § 16. 112j Judgment 228 €--'735 228 Judgment 228XIV Conclusiveness of Adjudication 228XIV(C) Matters Concluded 228k734 Matters Not in Issue 228k735 k. In general. Most Cited Cases A quo warranto judgment ousting a city from ju- risdiction over lands annexed by a presumptively valid act, on ground that title of act was not sufficiently comprehensive to embrace lands, was not res judicata except with respect to adjudged insufficiency of title, and judgment did not relieve city of its legal obliga- tions or destroy legal rights acquired while city was exercising de facto jurisdiction over lands. Sp.Acts 1925, c. 11301; F.S.A.Const. art. 3, § 16. Municipal Corporations 268 917(2) 268 Municipal Corporations 268XIII Fiscal Matters 268XIII(C) Bonds and Other Securities, and Sinking Funds 268k917 Proceedings Preliminary to Issue of Bonds 268k917(2) k. Determination of validity. Page 7 Most Cited Cases Validating decrees adjudicate the validity of proposed issues of municipal bonds, but whether lands over which a de jure city exercises de facto jurisdic- tion when negotiable municipal bonds are issued are subject to taxation to pay bonds must be determined by appropriate judicial procedure, and if lands are not subject to municipal taxation, or if they are so located that their taxation for municipal purposes would vio- late property rights secured by organic law, both questions may be adjudicated in appropriate pro- ceedings in which questions of city's powers and of waiver or estoppel of landowners may be presented. 1] Constitutional Law 92 €='3465 92 Constitutional Law 92XXVI Equal Protection 92XXVI(C) Civil Actions and Proceedings 92k3465 k. Judgment and execution. Most Cited Cases (Formerly 92k249(8), 92k249) Constitutional Law 92 €='4008 92 Constitutional Law 92XXVII Due Process 92XXVII(E) Civil Actions and Proceedings 92k4007 Judgment or Other Determination 92k4008 k. In general. Most Cited Cases (Formerly 92k315) A quo warranto judgment ousting a city from de jure jurisdiction over an added area on ground that area was not covered by subject expressed in title of act attempting to include area did not deny equal protection or due process of law to a landowner, who had been a co -relator in quo warranto proceedings, seeking to enjoin collection of municipal taxes as- sessed against his land located in added area, since, if landowner had a right to relief, that right was not waived or barred but could be litigated in appropriate proceedings. Sp.Acts 1925, c. 11301; Const. art. 3, § 16. 1J Municipal Corporations 268 €'906 268 Municipal Corporations 268XIII Fiscal Matters © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 181 So. 153 132 Fla, 334, 181 So. 153 (Cite as: 132 Fla. 334, 181 So. 153) 268XIII(C) Bonds and Other Securities, and Sinking Funds 268k906 k. Nature of power to issue secu- rities. Most Cited Cases A de jure municipality cannot issue negotiable bonds for authorized municipal purposes by the exer- cise of de facto jurisdiction and refuse to compensate therefor without violating organic law, where bonds are authorized by statute and are not issued in viola- tion of a command or prohibition of the Constitution affecting the authority to issue bonds or the terms or purposes thereof. 12111Judgment 228 ()=135 228 Judgment 228XIV Conclusiveness of Adjudication 228XIV(C) Matters Concluded 228k734 Matters Not in Issue 228k735 k. In general. Most Cited Cases A quo warrant° judgment ousting a city of de jure jurisdiction over an added area on ground that area was not covered by subject expressed in title to act establishing a city's territorial limits was binding on all parties, but judgment did not adjudicate rights and obligations resulting from exercise of de facto juris- diction over lands incorporated at time when munic- ipal bonds were issued for authorized municipal pur- poses, for payment of which city's taxing power over all lands was pledged. 111 Municipal Corporations 268 €---)917(2) 268 Municipal Corporations 268XIII Fiscal Matters 268XIII(C) Bonds and Other Securities, and Sinking Funds 268k9 17 Proceedings Preliminary to Issue of Bonds 268k917(2) k. Determination of validity. Most Cited Cases If a statute embraces in the boundaries of a city land that cannot be taxed for municipal purposes without violating some provision or principle of or- ganic law, that matter may be determined in appro- priate judicial proceedings, but not in bond -validating proceedings. F.S.A.Const. art. 8, § 8. Page 8 **156 Appeal from Circuit Court, Polk County; H. C. Petteway, Judge. Touchton & Crittenden, of Winter Haven, for appellee. Henry Sinclair, of Winter Haven, for appellants. Touchton & Crittenden, of Winter Haven, for appel- lee. Statement by WHITFIELD, Justice. The Constitution of Florida contains the follow- ing: 'The Legislature shall establish a uniform system of county and municipal government.' Section 24, art. 3. 'The Legislature shall have power to establish, and to abolish, municipalities, to provide for their government, to prescribe their jurisdiction and pow- ers, and to alter or amend the same at any time. When any municipality shall be abolished, provision shall be made for the protection of its creditors.' Section 8, art. 8. See amended section 6, art. 9, quoted below. 'The Legislature shall authorize the several counties arid incorporated cities or towns in the State to assess and impose taxes for county and municipal purposes, and for no other purposes, and all property shall be taxed upon the principles established for State taxation. But the cities and incorporated towns shall make their own assessments for municipal purposes upon the property within their limits. The Legislature may also provide for levying a special capitation tax, and a tax on licenses. But the capitation tax shall not exceed one dollar a year and shall be applied exclu- sively to common school purposes.' Section 5, art. 9. 'Each law enacted in the Legislature shall em- brace but one subject and matter properly connected therewith, which subject shall be briefly expressed in the title; and no law shall be amended or revised by reference to its title only; but in such case the act, as revised, or section, as amended, shall be re-enacted and published at length.' Section 16, art. 3. *341 'All courts in this State shall be open, so that every person for any injury done him in his lands, goods, person or reputation shall have remedy, by due © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items D1.3 on 02-14-13 Todd B. Hannon 181 So. 153 132 Fla, 334, 181 So. 153 (Cite as: 132 Fla. 334, 181 So. 153) course of law, and right and justice shall he adminis- tered without sale, denial or delay.' Section 4, Decla- ration of Rights. 'Every male person of the age of twenty-one years and upwards that shall, at the time of registra- tion, be a citizen of the United States, and that shall have resided and had his habitation, domicile, home and place of permanent abode in Florida for one year and in the county for six months, shall in such county be deemed a qualified elector at all elections under this Constitution. Naturalized citizens of the United States at the time of and before registration shall produce to the registration officers his certificate of naturalization or a duly certified copy thereof.' Section 1, art. 6, adopted 1894. The word 'male' in the first line of this section was automatically eliminated by the dominant force of the nineteenth **157 Amendment to the Federal Constitution Jan. 29, 1919, State ex rel. v. Gray, 107 Fla. 73, 144 So. 349. 'The Legislature shall have power to provide for issuing State bonds only for the purpose of repelling invasion or suppressing insurrection, and the counties, districts or municipalities of the State of Florida shall have power to issue bonds only after the same shall have been approved by a majority of the votes cast in an election in which a majority of the freeholders who are qualified electors residing in such counties, dis- tricts, or municipalities shall participate, to be held in the manner to be prescribed by law; but the provisions of this law shall not apply to the refunding of bonds issued exclusively for the purpose of refunding of the bonds or the interest thereon of such counties, dis- tricts, or municipalities.' Section 6, art. 9, as amended in 1930. *342 The title and sections 1 and 2 of chapter 11301, Sp.Acts of 1925, are as follows: 'An Act to Establish the Territorial Limits of the City of Winter Haven, Florida; to Abolish the Town of Florence Villa Within the Proposed New Corporate Limits of the said City of Winter Haven; to Provide for the Succession by the City of Winter Haven to the Ownership of all Property and Assets of said Town of Florence Villa and the Liability of said City of Winter Haven for all Debts, Obligations and Franchises of said Town of Florence Villa. Page 9 'Be It Enacted by the Legislature of the State of Florida: 'Section 1. The City of Winter Haven, a munic- ipal corporation under the laws of the State of Florida. shall include and have jurisdiction over all the territory in Polk County, Florida, included in the following boundaries, to -wit: 'Beginning at the northeast (NE) corner of the southwest quarter (SW 1/4 ) of the northeast quarter (NE 1/4 ) of Section Fifteen (15), Township Twen- ty-eight (28) south, Range Twenty-six (26) east, run- ning thence south to the southwest (SW) corner of the northeast quarter (NE 1/4 ) of the northeast quarter (NE 1/4 ) of Section Three (3). Township Twenty-nine (29) south, Range Twenty-six (26) east; thence west two and one-half miles more or less. to the western boundary of the Atlantic Coast Line Railway right-of-way; thence southwesterly along said right-of-way line to a point on the southern boundary of the southwest quarter (SW 1/4 ) of the northwest quarter (NW 1/4 ) of Section Five (5), Township Twenty-nine (29) south, Range Twenty-six (26) east; thence west to the southwest (SW) corner of the southeast quarter (SE 1/4 ) of the northeast quarter (NE 1/4 ) of Section Six (6), Township Twenty-nine (29) south, Range Twenty-six (26) east; thence north to the northeast (NE) corner of the *343 southwest quarter (SW 1/4) of the northeast quarter (NE 1/4 ) of Section Six (6), Township Twenty-nine (29) south, Range Twenty-six (26) east; thence west to the northeast (NE) corner of the southwest quarter (SW 1/4 ) of the northeast quarter (NE 1/4 ) of section One (1), Township Twenty-nine (29) south, Range Twen- ty-five (25) east; thence north to the northeast (NE) corner of the northwest quarter (NW 1/4 ) of the northeast quarter (NE 1/4 ) of Section Twenty-five (25), Township Twenty-eight (28) south, Range Twenty-five (25) east; thence west to a point six hundred sixty (660) feet west of the southeast (SE) corner of the southeast quarter (SE 1/4 ) of the southwest quarter (SW 1/4 ) of Section Twenty-four (24), **158 Township Twenty-eight (28) south, Range Twenty-five east; thence north to the southern boundary of the northeast quarter (NE 1/4 ) of the southwest quarter (SW 1/4 ) of Section Twenty-four (24), Township Twenty-eight (28) south, Range Twenty-five (25) East; thence east to the southwest (SW) corner of the northwest quarter (NW 1/4 ) of the southeast quarter (SE 1/4 ) of section Twenty-four 0 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 181 So. 153 132 Fla. 334, 181 So. 153 (Cite as: 132 Fla. 334, 181 So. 153) (24), Township Twenty-eight (28) south, Range Twenty-five (25) east; thence north to the northwest (NW) corner of the northwest quarter (NW 1/4 ) of the southeast quarter (SE 1/4 ) of Section Twenty-four (24), Township Twenty-eight (28) south, Range Twenty-five (25) east; thence east to the southeast (SE) corner of the southwest quarter (SW 1/4 ) of the north east quarter (NE 1/4 ) of Section Twenty-four (24), Township Twenty-eight (28) south, Range Twenty-five (25) east; thence north to the northeast (NE) corner of the southwest quarter (SW 1/4 ) of *344 the northeast quarter (NE 1/4 ) of Section Twenty-four (24), Township Twenty-eight (28) south, Range Twenty-five (25) east; thence west to the northwest (NW) corner of the southwest quarter (SW 1/4 ) of the northwest quarter (NW 1/4 ) of Section Twenty-four (24), Township Twenty-eight (28) south, Range Twenty-five (25) east; thence north to the northwest (NW) corner of Section Twenty-four (24), Township Twenty-eight (28) south, Range Twen- ty-five (25) east; thence west to the southwest (SW) comer of the southeast quarter (SE 1/4 ) of the southeast quarter (SE 1/4 ) of Section Fourteen (14), Township Twenty-eight (28) south, Range Twen- ty-five (25) east; thence north to the northwest (NW) comer of the northeast quarter (NE 1/4 ) or the northeast quarter (NE 1/4 ) of Section Fourteen (14), Township Twenty-eight (28) south, Range Twen- ty-five (25) east; thence east to the northeast (NE) comer of Section Fourteen (14), Township Twen- ty-eight (28) south, Range Twenty-five (25) east; thence south to the northeast (NE) corner of the southeast quarter (SE 1/4 ) of the northeast quarter (NE 1/4 ) of Section Fourteen (14) Township Twen- ty-eight (28), south, Range Twenty-five (25) east; thence east to the Auburndale -Florence Villa Road; thence in a southerly and easterly direction along said road to a point on the eastern boundary of the north- west quarter (NW 1/4 ) of the southeast quarter (SE 1/4) of Section Thirteen (13), Township Twenty-eight (28) south, Range Twenty-five (25) east; thence north to the northeast (NE) corner of the southwest quarter (SW 1/4) of the northeast quarter (NE 1/4) of Section Thirteen (13), Township Twenty-eight (28) south, Range Twenty-five (25) east; thence east to point of beginning. 'Sec. 2. The inhabitants comprehended within said territory shall be, and they are hereby constituted a body corporate and politic, with the right to use and exercise all the powers and privileges described and set forth in the charter of the City of Winter Haven, Page 10 heretofore granted to said City and enacted by an Act of the Legislature of *345 the State of Florida, Regular Session of 1925, and all powers and privileges granted to said City by any special act or acts of the Legisla- ture of the State of Florida, and by the provisions of the General Statute Law of the State, relative to cities and town, not in conflict with the said charter of said City.' Sections 2935(1825) and 2936(1826), C. G. L., contain the following: `It shall be lawful for the male inhabitants of any hamlet, village or town in this State, not less than twenty-five in number, who shall have the qualifica- tions hereinafter prescribed, to establish for them- selves a municipal government with corporate powers and privileges as hereinafter provided. (Ch. 2047, Acts 1875, § 1.)' `Whenever any municipal government is estab- lished. and it shall appear that there are three hundred registered voters within the limits hereby to be des- ignated, it shall be and the same is hereby incorporated and designated as a city, entitled to the privileges of a city. All municipal governments having a less number of voters than those named above shall be and the same are hereby designated and declared incorporated towns, entitled to the privileges and rights of incor- porated towns. (Ch. 1688, Acts 1869, § 3.)' Other sections of the general statutes of the state, under section 24, article 3, of the Constitution, provide the method to be pursued in the establishment of mu- nicipalities by the electors of a community and also define the powers, duties, and franchises of munici- palities to be applicable when not otherwise provided by law under section 8, article 8. See Sanders v. Howell. 73 Fla. 563, 74 So. 802; City of St. Petersburg v. Pinellas County Power Co., 87 Fla. 315, 100 So. 509• State ex rel. v. Burr, 79 Fla. 290, 84 So. 61; Munn v. Finger, 66 Fla. 572, 64 So. 271, 51 L.R.A.,N.S., 631 • Town of Enterprise v. State, 29 Fla. 128, 10 So. 740. *346 Chapter 11299, Sp. Acts of 1925, contains the following: 'Sec. 88. Bonds. That the City Commission shall have the power to provide by ordinance for the issue of negotiable bonds of said City for the purpose of © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items D1.3 on 02-14-13 Todd B. Hannon 181 So. 153 132 Fla. 334, 181 So. 153 (Cite as: 132 Fla. 334, 181 So. 153) constructing or purchasing and maintaining, operat- ing, improving and extending the water works, electric light and power plant and constructing public build- ings for said City; and for grading, curbing, paving and draining the streets, avenues and thoroughfares of said City; and to provide a park or parks, and improve the same; and for the establishment of a municipal gas plant; and for the establishment of hospitals; and for funding any pre-existing bonded indebtedness; but negotiable bonds of said City shall never be issued in a greater amount than ten per cent of the assessed valu- ation of the real and personal property of said City.' 'Sec. 62. Levies. —The City of Winter Haven shall have power to levy taxes each year for the ordi- nary purpose of the municipality and for the mainte- nance and **159 repairs of its property, streets, public works and hospitals; provided that such levy shall be at a rate not to exceed ten mills on the assessed valu- ation of the taxable property within its limits. * * * 'Sec. 63. Special Tax. —The City of Winter Ha- ven shall also levy and collect annually upon its tax- able property aforesaid such sums as may be necessary to pay principal and interest on the indebtedness of the City and to pay the bonds of the City already issued, or any bonds which may be issued in accordance with law.' Section 24, article 3, of the Constitution, as amended in 1934, is not self-executing, and no statutes have been enacted to make the amendment to the section operative or effective. State v. Alsop, 120 Fla. 628, 163 So. 80; State v. Jones, 121 Fla. 216, 163 So. 5 *347State v. Town of Belle Glade, 121 Fla. 200, 163 So. 564; State v. Emerson, 126 Fla, 576, 171 So. 663. Until enabling statutes are duly enacted, the or- ganic section is effective only as it was before the amendment. The city of Winter Haven, under its Charter Act, chapter 11299, and under the prima facie valid and presumably valid provisions of chapter 11301, Sp. Acts of 1925, exercised municipal governmental ju- risdiction and authority over the entire city area as described in chapter 11301; and during a period of years, apparently without a contest of authority, issued bonds of the city under its Charter Act, chapter 11299, to be paid by taxation upon lands in the city as pro- vided by the city Charter Act. The bonds were sold to bona fide purchasers after being validated by judicial Page 11 decrees pursuant to statute, all citizens and taxpayers of the city being by statute made parties to the suit, and the bond proceeds were used by the city for authorized municipal public improvements in the city, some of such proceeds being used in the area added by chapter 11301, before the quo warranto judgment ousted the jurisdiction of the city from the added area in which the plaintiffs land is located. This gave the city de facto jurisdiction and presumptively de jure jurisdic- tion over all the areas described in chapter 11301, and de jure jurisdiction over all the areas that were not subject to the judgment of ouster in the quo warranto proceedings, with de facto jurisdiction over the area covered by the quo warranto judgment of ouster. See City of Winter Haven v. Gillespie, 5 Cir., 84 F.2d 285. The validation proceedings became res adjudi- cata as to the validity of the bonds as against the city and its citizens and taxpayers. The invalidity of the portion of chapter 11301 which included the unin- corporated added area in the city limits does not ap- pear on the face of the statute itself. It does not appear that such invalidity was in any was referred*348 to in the record of the proceedings validating the bonds or in issuing the bonds, or that the plaintiff, or any citizen or any other taxpayer of the city or in the added area, challenged the validity of the bonds before they were issued, or challenged the validating proceedings or the use of the bond proceeds for public improvements in the city, some of the improvements being in the area afterwards excluded from the de jure jurisdiction of the city by the quo warranto judgment of ouster. Plaintiff waived its rights by acquiescence, even if it is not otherwise bound, because of the facts above stated. 87 A.L.R. note 706. In the course of the opinion in this case, numer- ous cases are cited, and it will be helpful to indicate here the essential points involved in some of those cases. In the State v. L'Engle case, 40 Fla. 392, 24 So. 539. the Brown v. City of Lakeland case, 61 Fla. 508, 54 So. 716; the State ex rel. Nuveen v. Greer case, 88 Fla. 249, 102 So. 739, 37 A.L.R. 1298; the Wein- berger v. Board of Public Instruction case, 93 Fla. 470, 112 So. 253, and other like cases, the illegality of the statutes involved appeared by the face of the statutes, and the provisions of the Constitution violated by the statutes related to the power of the Legislature as to the subject matter of the statutes, and did not, as here, © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 181 So. 153 132 Fla. 334, 181 So. 153 (Cite as: 132 Fla. 334,181 So. 153) relate merely to the form and manner of including the land in the city limits. In the State v. Holly Hill case, 128 Fla. 385, 174 So. 818, and other like cases, the statutes reducing the city limits after authorized municipal bonds were legally issued and the proceeds used for authorized municipal purposes, violated the obligation of the bond contracts, which is forbidden by the State and Federal Constitutions. Const.Fla. Declaration of Rights § l7; Const.U.S. art. 1, § 10. In the West v. Lake Placid case, 97 Fla. 127, 120 So. 361, the charter statute was prima facie and pre- sumptively valid, and while the town of Lake Placid was exercising**160 municipal jurisdiction and au- thority over the lands in the town, *349 the municipal bonds were to be issued pursuant to statutory authority in the presumably valid charter statute, and were val- idated before action was brought in which the city was by quo wan-anto proceedings ousted of its presumed de jure municipal existence and jurisdiction over the lands. By virtue of the facts stated, the town had de facto jurisdiction and authority to levy and collect taxes to pay bonds which had been validated by judi- cial decrees under statutory jurisdiction, before the judgment of ouster was rendered in quo warranto proceedings. The decrees validated the bonds when the statute establishing the municipality and author- izing the issue and use of the bonds was prima facie and presumably valid, and the statutory power of the municipality to tax the lands in the municipality to pay city obligations including the bonds was prima facie and presumably valid. It at least was not patently invalid on its face. The enormity of the area included in the municipality considered in connection with the very small population and other matters affecting the validity of the municipal charter had to be shown aliunde in the quo warranto proceedings in which a judgment of ouster was rendered against the town. State v. Town of Lake Placid, 121 Fla. 839, 164 So. 531; State v. Town of Lake Placid, 117 Fla. 874, 158 So. 497; State v. Town of Lake Placid, 109 Fla. 419. 147 So. 468. This gave the bonds a status as property protected by organic law; and the jurisdiction exerted over the land under the presumably valid statute gave the municipality de facto jurisdiction and power to issue and use the validated bonds for authorized mu- nicipal purposes and to tax the lands to pay the bonds and also to pay proper operating expenses before the ouster judgment, No patent invalidity in the statute 0 2013 Thomson Reuters. No Clai Page 12 appeared on its face, and no invalidity of the bonds appears on their face or in the record of the bond validating*350 or bond issuing proceedings, and no lack of good faith in the use or sale of the bonds is made to appear that estops bona fide holders of the bonds. See State v. Rodes, 115 Fla. 259, 151 So. 289. 155 So. 852. See, also, State v. Ryan, 118 Fla. 42, 151 So. 416, 718, 158 So. 62. In Smith v. Amidon, 102 Fla. 492, 136 So. 256. and Pierson v. Long 103 Fla. 383, 137 So. 232, there was an element of nonacquiescence in the operation of the statutes involved, and the principles of law had not been developed in this state and were not presented, that are applicable in cases where statutes incorpo- rating municipalities or defining their boundaries or their jurisdiction and powers are not invalid on their face, but are later adjudged to be invalid in whole or in part, upon the production of facts aliunde showing such invalidity, there may be de facto municipal ju- risdiction binding on the municipality and its citizens and taxpayers where municipal authority had been exercised under presumably valid statutes, and con- tract and other rights had been acquired because of the statutes. In the State v. City of Cedar Keys case, 122 Fla, 454. 165 So. 672, a statute, chapter 9698, Sp.Acts of 1923, under section 8, article 3, Constitution, recog- nized the then existing town of Cedar Keys under chapter 6673, Sp.Acts of 1913, and established the city of Cedar Keys with authority to issue bonds for municipal purposes and to tax lands within the city limits to pay the bonds. The municipality operated under such statutory authority for a number of years, By quo warranto judgment, the city of Cedar Keys was ousted of municipal jurisdiction and power under chapter 6673 and 9698 upon the ground that the stat- utory boundaries were indefinite, after the municipal- ity had issued authorized municipal bonds that were validated by statute and by judicial decree and the proceeds used for authorized municipal purposes. It was held that the bonds were issued under *351 prima facie and presumably valid statutory municipal juris- diction and authority to issue the bonds and to tax the lands in the area attempted to be described in the statute; and that when the city was ousted of its pre- sumably valid statutory jurisdiction and power, it then had de facto municipal jurisdiction and authority to continue proper taxation of the area for the payment of the bonds. See chapter 6673, Sp.Acts of 1913; section o Orig. US Gov, Works. Submitted into the public record in connection with items D1.3 on 02-14-13 Todd B. Hannon 181 So, 153 132 Fla, 334, 181 So. 153 (Cite as: 132 Fla. 334, 181 So. 153) 2935(1825), C.G.L. See other statutes cited in State v. City of Cedar Keys, 122 Fla. 454, 165 So. 672. In the State v. Town of Belleair case, 125 Fla. 669. 170 So. 434, the contest was as to whether mu- nicipal bonds had been issued and used for the benefit of chartered companies in violation of section 7, arti- cle 9, Constitution. See State v. Town of Belleair, 125 Fla. 669, 170 So. 434; Olds v. Alvord, Fla., 183 So. 711. As to what is **161 a municipal purpose, see Peterson v. Town of Davenport. 90 Fla, 71, 105 So. 265; City of Venice v. State, 96 Fla, 527, 118 So. 308; Martha Bright Farms, Inc. v. Broward County Port Authority, 117 Fla, 361, 158 So. 70: Martha Bright Farms v. Davis, 293 U.S. 531, 55 S.Ct. 209. 79 L.Ed. 640, See Clapp v. Otie County, 8 Cir., 104 F. 473, text page 486 and authorities cited at top of page 486; City of Huron v. Second Ward Say. Bank, 8 Cir., 86 F. 272, 277, 30 C.C.A. 38, 43. 49 L.R.A. 534; Board of Com'rs v. Aetna Life Ins. Co., 8 Cir„ 90 F. 222. In Ocean Beach Heights v. Brown-Crummer Investment Co., Town of North Miami Case, 58 S.Ct. 385, 82 L.Ed. , decided by the United States Supreme Court, January 17, 1938, the municipality was established not by statute, but by inhabitants under the general law, section 2935(1825). C.G.L., and there could be no de jure or de facto jurisdiction over noncontiguous lands that the inhabitants had no authority under the general law to incorporate into a de jure municipality. There was no statute establishing the town or defining its boundaries. Bonds were issued by the self -established *352 town after being validated by judicial decree, and the proceeds were used by the town for municipal purposes before the noncontiguous land was adjudged to be not legally within the limits of the town. As the noncontiguous lands, that were claimed by the town and its bondholders to be in the municipal limits by action of the inhabitants of the town and not by statute, were never legally in the town and could not have been legally made a part of the town by action of its inhabitants taken under the gen- eral statutes, the noncontiguous land was never de jure or de facto in the town limits and was never subject to the jurisdiction of the town. The citizens and taxpayers of the noncontiguous land were not parties to the suit validating the bonds because the bond validating statute makes only those within the de jure or de facto municipal limits parties to the bond validating suit; and the residents of the noncontiguous land did not appear in the bond validating suit or actively acquiesce Page 13 in issuing the bonds, even if that could have made the noncontiguous land or the owners thereof liable to taxation to pay the bonds. If the municipality had been established by statute, it could have acquired de facto jurisdiction over the noncontiguous land if the statute had attempted to confer such jurisdiction by statute and failed, not because the Legislature had no power to include the territory, but because of a defect in enacting the statute. See Mahood v. State, 101 Fla. 1254, 133 So. 90; Leatherman v. Alta Cliff Co., 114 Fla. 305. 153 So, 845; State v. City of Cedar Kevs, 122 Fla, 454, 165 So. 672; Town of Enterprise v. State, 29 Fla. 128. 10 So. 740; Duke v. Taylor, 37 Fla. 64, 67, 19 So. 172, 31 L.R.A. 484, 53 Am.St.Rep. 232; McQuillin Municipal Corporations, 2d, § 175. In State ex rel. v. City of Winter Haven, 114 Fla. 199. 154 So. 700, it was, in legal effect, alleged that the city *353 was illegally exercising municipal ju- risdiction and authority over the added area under chapter 11301, Sp.Acts of 1925, which allegations had reference to de jure jurisdiction and authority over the area including plaintiffs land, and not to any de facto jurisdiction that might flow from the exercise of ju- risdiction and authority under chapter 11301 and the ouster of the city from de jure jurisdiction and au- thority under chapter 11301. The quo warranto judgment of ouster 'adjudged that the respondent, City of Winter Haven, be absolutely excluded and ousted from exercising or assuming to exercise any authority, power, franchise, privilege or jurisdiction over the' described lands. This adjudication had relation to the claimed de jure municipal jurisdiction and authority that was then being exercised by the city over the particular lands by virtue of the prima facie and pre- sumably valid portion of chapter 11301 adding the particular lands to the boundaries of the city of Winter Haven. That statute attempted to include in the city boundaries the particular lands and to thereby give the city de jure jurisdiction arid authority over the added area. The quo warranto judgment of ouster is predi- cated upon the adjudication that the portion of the statute adding the particular area to the city limits was not covered by the subject expressed in the title of the act, thereby violating section 16, article 3, of the Constitution, which rendered such portion of the stat- ute invalid from its enactment. The effect of the quo warranto judgment was to oust the city of its claimed de jure municipal jurisdiction and authority over the area under the then adjudicated invalid portion of the statute, chaptcr 11301, which added the area to the boundaries of the city. The judgment of ouster did not © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items 0I.3 on 02-14-13 Todd B. Hannon 181 So. 153 132 Fla. 334, 181 So. 153 (Cite as: 132 Fla. 334, 181 So. 153) actually change the boundaries of the area within the city limits as defined by chapter 11301, for that is a legislative function, unless expressly authorized**162 by statute, sections *354 3048(1915) to 3050(1917), C.G.L.; Phillips v. Town of Altamonte Springs, 92 Fla. 862, 110 So. 460. See, also, State v. City of Homestead, 100 Fla. 361, 130 So. 28; Smith v. Ami- don, 102 Fla. 492, l36 So. 256. In State ex rel. Davis, Attorney General v. City of Stuart, 97 Fla. 69, 120 So. 335, 64 A.L.R. 1307, the entire act extending the city limits was held void. See, also, State ex rel. v. City of Largo, 110 Fla. 21, 149 So. 420. In Hayes v. Walker, 54 Fla. 163, 44 So. 747, the statute provided that the area added to the city boundaries should not be liable for the pre-existing debts of the city. In this case the portion of the statute, chapter 11301, Sp.Acts of 1925, which added the theretofore unincorporated area to the city limits. was prima facie and presumptively constitutional and valid, and prima facie made the area subject to taxa- tion to pay municipal bonds duly validated, sold, and used for authorized municipal public improvements after the area was added to the city and before the jurisdiction and authority of the city was ousted from such added area by quo warranto judgment, the city being a validly existing municipality and having de facto jurisdiction and authority over the defectively added area, The title to chapter 11299, Sp.Acts of 1925, is: 'An Act to Validate and Legalize an Election Held in and for the City of Winter Haven on the 27th day of November, A. D. 1923; to Validate and Le- galize the Charter of the City of Winter Haven, which was Adopted by the Electors of said City at said Election held on the 27th day of November, A. D. 1923; and to Validate and Legalize all Contracts, Municipal Assessments, Ordinances and Resolutions, Appointments and Election of Officers and all other Acts which have been done under and by Virtue of said Charter, and Providing a Form and Method of Government for Said City of Winter Haven.' *355 A statute cannot validate a statute that was not legally enacted, Williams v. Dormany, 99 Fla. 496, 126 So. 117. nor validate proceedings that violate organic provisions relating to the subject matter of the proceedings sought to be validated, Munroe v. Reeves, 71 Fla. 612, 71 So. 922; State ex rel. Nuveen v. Greer. Page 14 88 Fla. 249, 102 So. 739, 37 A.L.R. 1298; Nuveen & Co. v. Quincy, 115 Fla. 510, 156 So. 153, 94 A.L.R. 600; but a statute may validate and make effective any previous statutory or other proceedings which it can authorize and could have authorized. Schultz v. State, 80 Fla. 564, 86 So. 428; Charlotte Harbor & N. R. Co. v. Welles, 260 U.S. 8, 43 S.Ct. 3, 67 L.Ed. 100. The municipal bonds issued under the above statute were validated by judicial decrees as author- ized by statute. Section 5106(3296) et seq., C.G,L. Judicial decrees cannot make effective a statute which violates a provision of the Constitution regu- lating the subject matter of the statute, or validate bonds that conflict with the Constitution. Weinberger v. Board of Public Instruction, 93 Fla, 470, 112 So, 253; State ex rel. Nuveen v. Greer. 88 Fla. 249, 102 So. 739, 37 A.L.R. 1298; Nuveen & Co. v. Quincy, 1 l5 Fla. 510, 156 So. 153. 94 A.L.R. 600, Judicial decrees duly rendered under the vali- dating statute may validate municipal bonds which are authorized by the Constitution or a statute to be issued, even though the authority to issue the bonds is defec- tively exercised, provided the bonds as issued do not violate any command or prohibition of the Constitu- tion and are in substantial compliance with thc Con- stitution or statute which is the basic authority for issuing the bonds. Board of Public Instruction v. State. 121 Fla. 703, 164 So. 697. In the Nuveen Case, Munroe v. Reeves, 71 Fla. 612, 71 So. 922. thc bond issue was validated by statute, chapter 6095, Acts of 1909; but as the school bonds included in the issue on their face violated article 12 of the Constitution, the statutory validation was ineffectual. A statute *356 cannot validate and make legal municipal bonds which a statute could not have authorized to he issued, the Constitution, for bidding such issue. Smith Bros. v. Williams. 100 Fla. 642, 126 So. 367; City of Daytona Beach v. King, Fla., 181 So. 1. The portion of the statute purporting to authorize the town to issue bonds for public free school purposes had never been adjudicated to be constitutional; and as the statute and the bonds showed on their face that the bonds were for a purpose impliedly forbidden by article 3 of the constitution, as interpreted in State ex rel. v. L'-Engle, 40 Fla. 392. 24 So. 539, and Brown v. © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 181 So. 153 132 Fla. 334, 181 So. 153 (Cite as: 132 Fla. 334, 181 So. 153) City of Lakeland, 61 Fla. 508, 54 So. 716, the school bonds issued by the town were invalid and could not be enforced as bonds of the town. See State ex rel. Nuveen v. Greer, 88 Fla. 249, 102 So. 739, 37 A.L.R. 1298; **163Nuveen & Co. v. City of Quincy, 115 Fla. 510, 156 So. 153, 94 A.I,.R. 600. In the Weinberger Case the bonds on their face showed they violated the terms of section 17, article 12, of the Constitution, which regulates the terms of bonds issued by special tax school districts. The bonds being unconstitutional on their face, were enjoined before they were sold, even though they had been validated by judicial decree. See Weinberger v. Board of Public Instruction, 93 Fla. 470, 112 So. 253. Prior to and after 1925, a period of extended and permanent economic development was under way in the State of Florida, and many large areas of unim- proved lands were incorporated into some of the mu- nicipalities in the state for municipal purposes. Public improvement bonds were issued and the proceeds used in paving streets and sidewalks and in con- structing other municipal public improvements arid utilities. Later numerous steps were taken to exclude some of such unimproved areas from the limits of municipalities.*357 See State ex rel. Johnson, Attor- ney General v. City of Sarasota, 92 Fla. 563 109 So. 473; State ex rel. Davis,Attorney General v. City of Stuart, 97 Fla. 69 120 So. 335 64 A.L.R. 1307. State ex rel. Attorney General v. City of Avon Park, 108 Fla. 641, 149 So. 409; State ex rel. Davis, Attorney General v. City of Avon Park, 117 Fla. 565, 158 So. 159, 98 A.L.R. 230; State ex rel. Davis, Attorney General v. City of Eau Gallie, 99 Fla. 579 126 So, 124; State ex rel. Davis. Attorney General v. Town of Lake Placid, 109 Fla. 419, 147 So. 468. See chapters 13402, 13403, Sp.Acts of 1927, and other municipal charters. This suit, like many others, is to determine the right of municipalities to exercise taxing powers over lands which have been excluded from municipal ju- risdiction after municipal bonds have been issued and validated and sold and the proceeds used for author- ized municipal public improvements. The cases in- volve important questions of fundamental law and affect the rights of an ever increasing population of the state, whose progressive citizens, unequaled climate, abundant natural resources, and fair election laws, Page 15 good roads, and other inducements attract thousands of new settlers every year as is shown by the census reports giving the population of Florida as 528,542 in 1900; 752,619 in 1910; 968,470 in 1920; 1,263,549 in 1925; 1,468,211 in 1930; 1,606,842 in 1935; esti- mated at 1,747,214 in 1937. Total state assessment values in 1900 were $96,686,954.00 and in 1937 were $427,195,255.00. WHITFIELD, Justice. This suit was brought by a citizen taxpayer, who is the owner, to enjoin municipal taxation of described land. The levies for the years 1930, 1931, 1932, 1933 are apparently for operating expenses and bond pay- ments, and for the year 1936 the levy is apparently to pay municipal bonds that were issued arid used for municipal public improvements under chapters 11299 and 11301, *358 Sp.Acts of 1925, before the munic- ipal authority of the city of Winter Haven over a par- ticular area, including plaintiffs land, was ousted by a judgment in quo warranto proceedings. The prayer is for cancellation of tax levies and for injunction against levies and collection of taxes upon plaintiffs land for the stated purposes. [1! Illegal taxation of lands may be enjoined. Pickett v. Russell. 42 Fla, 116. 28 So. 764; Tampa Water Works Co. v. Wood 104 Fla, 306 139 So. 800; Consolidated Land Co. v. Tyler, 88 Fla. 14, 101 So. 280; State v. City of Avon Park, 108 Fla. 641, 149 So. 409: City of Sarasota v. Skillin, Fla., 178 So. 837. The bill of complaint seeks relief upon the ground that plaintiffs land was never legally within the city limits, and not upon the ground that plaintiffs land has not received and cannot receive any possible benefits from the municipality or from its public im- provements, as in City of Sarasota v. Skillin, Fla., 178 So. 837; State v. City of Avon Park 108 Fla. 641 149 So. 409. Counsel for the city in effect argues that the city, being a de jure municipality, has de facto jurisdiction and authority to levy and collect the taxes on plaintiffs land to pay administrative expenses and also to pay municipal bonds issued by the city as authorized under its statutory charter, chapter 11299, with power to impose the tax, while chapter 11301, Sp.Acts of 1925, which added to the city boundaries the area formerly in the town of Florence Villa and also added another area embracing plaintiffs land, was prima facie and 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items 01.3 on 02-14-13 Todd B. Hannon 181 So. 153 132 Fla. 334, 181 So. 153 (Cite as: 132 Fla. 334, 181 So. 153) presumptively valid and in force in its entirety. **164 The plaintiff below, appellee here, con- tends in effect that by reason of the insufficiency of the title to chapter 11301, Sp. Acts of 1925, to cover the portion of the statute which adds to the boundaries of the city of Winter Haven the area *359 theretofore incorporated, that portion of the statute is invalid; that such partial invalidity appears on the face of the stat- ute; that such portion of the statute was void from its enactment because it violated section 16 of article 3, Constitution; that there can be no de facto jurisdiction of the city over such area; that taxation of plaintiffs land in such area violates sections 3 and 5 of article 9 of the State Constitution. These contentions are not well founded, as will be shown herein. Appellee does not contest the validity of the municipal bonds of the city of Winter Haven. [21131 Statutes and judicial judgments and decrees should be so interpreted and applied as to effectuate the intended purpose that is consistent with applicable provisions of the paramount organic law; and personal and property rights, that are intended by the Constitu- tion to be secured to those lawfully claiming them, should be protected and enforced by due course of law, when no applicable express or implied provision of the State or Federal Constitutions is thereby vio- lated. For example, when the subject of property rights is lawfully produced or created, and rights that are intended by the Constitution to be secured to those lawfully claiming them are bona fide duly acquired in the property so produced or created, such rights should hy due course of law he protected and enforced, even though there be procedural or other defects. but no violation of controlling organic law, in the creation or acquisition of such rights. See State v. City of Cedar Keys, 122 Fla. 454. 165 So, 672. See, also, West v. Town of Lake Placid. 97 Fla. 127, 120 So. 361. 141 But if a command or prohibition of the Con- stitution is violated in the creation or production of the subjects of property or in the acquisition of interest therein, such interests are not rights that are intended by the Constitution to be secured, and they will not as such be protected or enforced*360 in the courts. See State ex rel. Nuveen v. Greer, 88 Fla. 249, 102 So. 739, 37 A.L.R. 1298. Chapter 11299, Sp.Acts of 1925, established the city of Winter Haven with described boundaries and Page 16 extensive municipal powers and authority including authority to issue municipal interest -bearing negotia- ble bonds to be sold and the proceeds thereof used for authorized municipal improvement purposes, the interest and principal of the bonds to be paid by nec- essary annual tax levied upon all the property within the city, 151Chapter 11301, Sp.Acts of 1925, abolished the adjacent town of Florence Villa and added its area to that of the city of Winter Haven, together with an additional area including plaintiff's land, not thereto- fore in any municipality. After June 2, 1925, the effective date of chapter 11301, the city of Winter Haven, pursuant to its stat- utory charter authority, issued municipal inter- est -bearing negotiable bonds for authorized municipal public improvement purposes. The bonds in effect state that all provisions of law were complied with, and pledged the faith and credit of the city for the payment of the bonds. The statute authorized the tax- ation of all the lands within the city limits to pay the bonds. The bonds were duly validated by decrees of the circuit court, a court of general jurisdiction, acting under express statutory authority consistent with the constitution, No appeals were taken from the validat- ing decrees. The statute made all citizens and taxpay- ers of the city parties to the validating proceedings. None of them contested the validation or the issue of the bonds, and the decrees of validation became res adjudicata. The proceeds of the bonds were used for authorized municipal public improvements, some of the improvements being in the added area which em- braces plaintiffs land. Taxes were annually levied upon all the taxable lands in the city of Winter Haven, as described*361 by chapter 11301, including the area embracing plaintiffs land, to pay the interest and principal of the bonds and operating expenses. On March 7, 1934, after the bonds were validated and sold and the municipal public improvements were made, the city of Winter Haven was by quo warranto judgment ousted from all jurisdiction and authority over the stated added area embracing plaintiff's land. State ex rel. v. City of Winter Haven, 114 Fla. 199. 154 So. 700. Thereafter the city of Winter Haven ceased to levy taxes on the area from which the jurisdiction of the city had been ousted by the quo warranto judg- 0 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 181 So. 153 132 Fla. 334, 181 So. 153 (Cite as: 132 Fla. 334, 181 So. 153) ment. Later in mandamus proceedings brought by **165 bondholders, the United States District Court required the city to continue to appropriately tax the lands covered by the quo warranto judgment for bond payment purposes until the interest and principal of the bonds are paid. Such judgment of the United States District Court was affirmed by the United States Circuit Court of Appeals. City of Winter Haven v. Gillespie, 5 Cir., 84 F.2d 285; certiorari was denied, Hartridge-Cannon Co. et al. v. Gillespie et al., 299 U.S. 606, 57 S,Ct. 232, 81 L.Ed. 447. A taxpayer brought this suit in the state circuit court to enjoin the city from taxation of his land for the above stated municipal purposes. From adverse in- terlocutory decrees the city took the appeal in this case. In City of Winter Haven v. Gillespie, 5 Cir., 84 F.2d 285, above cited, the action was mandamus brought by bondholders against the city to enforce taxation, In this case the suit is by a taxpayer against the city to enjoin taxation. The same basic principles of law are applicable in each case. Jj The quo warranto judgment of March 7, 1934, operating, not upon land, but upon city authorities, ousted the city of Winter Haven from exercising mu- nicipal jurisdiction*362 over the stated added area upon the ground, not that the Legislature had no power to add lands to the city limits, but that such area was not covered by the subject expressed in the title to chapter 11301, as is required by section 16, article 3, of the Constitution. As the Legislature had the power by statute to incorporate added lands in the city, and as the quo warranto judgment could not change the stat- utory boundaries of the city, and as the city had exer- cised the prima facie valid jurisdiction and authority conferred by the statute. the judgment ousting the city from jurisdiction over a part of the area did not affect the de facto jurisdiction of the city over such added area. When considered with the title of the act quoted in the statement, the description of the boundaries of the city of Winter Haven as contained in chapter 11301, also quoted in the statement filed herewith, does not show by the face of the statute that such described boundaries contain land not covered by the title of the act. Consequently the alleged failure of the title of the act to express a subject broad enough to 0 2013 Thomson Reuters. No Clai Page 17 include all the lands embraced in the descriptions of boundaries of the city of Winter Haven contained in chapter 11301 had to be, and was, shown by evidence aliunde the statute in the quo warranto proceedings before the judgment of ouster could have been legally rendered. State ex rel. v. City of Winter Haven. 114 Fla. 199, 154 So. 700. See, also, West v. Town of Lake Placid, 97 Fla. 127, 120 So. 361; State v. Town of Lake Placid, 109 Fla. 419, 147 So. 468; State v. Town of Lake Placid, 117 Fla. 874, 158 So. 497; State v. Town of Lake Placid, 121 Fla. 839, 164 So. 531. 171 Where a statute establishing, or relating to, the jurisdiction and powers of a municipality, or a part of such statute, violates a command or a prohibition of the Constitution which relates, not merely to the form of the exercise*363 of the legislative power in enact- ing statutes. as does section 16, article 3, but which relates to the nature or character of the subject matter of the enactment, as do section 17, article 12, section 30, article 3, and section 7, article 9, such statute, or a severable portion thereof so violating the Constitution, may be adjudicated to be invalid and inoperative ab initio, and, as in such cases the invalidity of the act or the portion thereof goes to the power of the Legisla- ture to enact the law, and not merely to the form of the enactment, no rights or correlative obligations may arise under such invalid statute or invalid portion of the statute. Such invalid statute or part of a statute could not be validated by statute or by judicial decree. See Brown v. City of Lakeland, 61 Fla. 508, 54 So. 7 Munroe v. Reeves, 71 Fla. 612, 71 So. 922; Weinberger v. Board of Public Instruction. 93 Fla. 470, 112 So. 253; Nuveen & Co. v. City of Ouincy, 115 Fla. 510, 156 So. 153, 94 A.L.R. 600; State ex rel. Nuveen v. Greer, 88 Fla. 249, 102 So. 739, 37 A.L.R. 1298. 181But where the Legislature has power to extend the authority of a city over added areas of lands by including them in an existing municipality, and at- tempts to do so by a prima facie and presumptively valid statute, and for some years the city exercises municipal authority over such lands, but the subject expressed in the title of the act is later adjudged to be not sufficiently comprehensive to embrace the partic- ular lands. such defect going to the form of the statute and not to the power of the Legislature to include lands in the municipality, and because thereof the city is ousted from **166 jurisdiction and authority over such particular area of lands by quo warranto judg- to Orig. US Gov. Works. Submitted into the public record in connection with items ©1,3 on 02-14-13 Todd Q. Hannon 181 So. 153 132 Fla. 334, 181 So. 153 (Cite as: 132 Fla. 334, 181 So. 153) ment, the municipal jurisdiction and authority exer- cised over such lands by virtue of the prima facie and presumptively valid statute may be de facto jurisdic- tion and authority, binding on citizens and taxpayers for the purposes of issuing bonds for *364 authorized municipal purposes, and levying duly authorized tax- es; since, under section 8, article 8 of the Constitution, the Legislature has power to incorporate lands, and the lands were intended to be included, though they were not legally included in the city limits, because of the defective title of the act. In such case, the portion of the statute covering the added area of lands would be prima facie and presumptively valid until adjudged to be invalid to confer de jure jurisdiction, because of the defective or illegal exercise of the power which the Legislature had, to include lands in the city limits and authority, though the city would have de facto juris- diction over the area because of the exercise of its prima facie jurisdiction and authority. But if the Leg- islature had no power to include lands within the limits and authority of the city, there could be no de jure or de facto municipal authority of the city over the lands. See State ex rel. v. Walthall, 124 Fla. 866, 169 So. 552• State ex rel. v. City of Cedar Keys, 122 Fla. 454, 165 So. 672; Ocean Beach Heights v. Brown-Crummer Inv. Co., 58 S.Ct. 385 82 L.Ed. filed Jan. 17, 1938. Chapter 11299, §§ 63, 88, authorizes the issue of municipal bonds not to exceed 10 per cent. of the value of the taxable property in the city, and requires the levy of taxes upon lands that are necessary to pay the bonds. Such levy is made 'in pursuance of law' under section 3, article 9 of the Constitution; and the statute is sufficiently definite and specific in its limi- tations as to the issue of bonds and taxation so as not to be an unlawful delegation of legislative power under section 5, article 9 of the Constitution. See Rountree v. State, 102 Fla. 246, 135 So. 888. The taxing power conferred by chapter 11299 is essentially unlike that conferred in Stewart v. Daytona & New Smyrna Inlet Dist., 94 Fla. 859, 114 So. 545. *365 In view of the above statements, it is clear that under chapters 11299 and 11301, Sp.Acts of 1925, the city of Winter Haven is a de jure munici- pality; that the city had authority to issue the bonds for the authorized municipal purposes; and, in order to pay the bonds, had and has authority to levy and col- lect an appropriate tax upon all the land that was prima facie and presumably legally within the city limits Page 18 under chapter 11301, the authority after the ouster judgment being de jure as to all lands legally in the city limits, and de facto, but effectual as to appropriate taxation of the land in the area from which the juris- diction of the city has been ousted by the quo warranto judgment, which area includes plaintiffs land, such taxation since 1934 being to pay amounts due on the bonds of the city. The quo warranto judgment of ouster was rendered years after the city assumed and exercised jurisdiction over all the territory described in chapter 11301, and after the bonds had been vali- dated and sold and the proceeds thereof used in the authorized municipal improvements made in the city, some of such improvements being in the area in which plaintiffs land is located. This conclusion is not intended to affect, and does not affect, the quo warranto judgment of ouster, relating as it does to the de jure jurisdiction of the city of Winter Haven over the stated added area; but the conclusion is that, under the facts shown, the original prima facie and presumptively de jure jurisdiction and ultimate de facto jurisdiction of the city of Winter Haven over the land affected by the judgment of ouster, and the exercise of such jurisdiction and au- thority before the ouster judgment, give the city legal authority to levy and collect appropriate and just taxes upon plaintiffs land since the judgment of ouster, to pay its proper share of the legal bond obligations of the city. The tax levies made before the ouster judg- ment apparently*366 were for operating expenses as well as for paying bonds issued by the city. A further discussion with citations of authority might not be inappropriate. [91 The right to establish a municipality does not exist in individuals but is conferred by the state through statutes that accord with organic law. Rob- inson v. Jones, 14 Fla. 256. The Constitution provides for the establishment of municipalities under authority given by general laws and by statutes dealing with particular municipalities. Section 24, article 3; section 8, article 8. Under section 24, article 3, the general statutes provide that **167 a municipality may be established by the `inhabitants of any hamlet, village or town in this State,' not less than twenty-five in number, by complying with the requirements of the statute. When duly established and organized, the municipality has stated powers, authority, duties, and privileges conferred by the general statutes regulating the establishment, powers, jurisdiction, and privileges © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on .02-14-13 Todd B.'Hannon 181 So. 153 132 Fla. 334, 181 So. 153 (Cite as: 132 Fla. 334, 181 So. 153) of such self -established municipalities. Section 2935(1825) et seq., C.G.L., copied or referred to in the statement preceding this opinion. 1101 The inhabitants of a community in estab- lishing a town under the statute have no authority to incorporate in the same municipality two distinct detached tracts of land; and an attempt to do so is void. Town of Enterprise v. State, 29 Fla. 128 10 So. 740; Mahood v, State, 101 Fla. 1254, 133 So. 90. A statute may incorporate into a municipality two separate and noncontiguous lands. Lane v. State, 63 Fla. 220, 57 So. 662. Under section 8, article 8, Constitution, quoted in the statement, except as modified by section 6, article 9, as amended in 1930, as to issuing governmental bonds, 'the Legislature shall have power to establish, and to abolish. municipalities, to provide for their government, to prescribe their jurisdiction and pow- ers.' *367Hayes v. Walker, 54 Fla, 163, 44 So. 747; State v. Tampa Water Works, 56 Fla. 858. 47 So. 358, 19 L.R.A.,N.S., 183; MacGuver v. City of Tampa, 89 Fla. 138, 103 So. 418; Lake Alfred v. Lawless, 102 Fla, 84, 135 So, 895; Lane v. State, 63 Fla. 220. 57 So. 662; State v, Avon Park, 108 Fla. 641. 149 So. 409. See section 6, article 9, as amended in 1930; Jack- sonville v. Renfroe, 102 Fla. 512, 136 So. 254. 1111 As a basis for the establishment of a munic- ipality by or under statutory authority, there must be in existence a community of people and a territory they occupy of sufficient but not patently excessive and unsuited area for the inhabitants to have such human contacts as to create a community of public interest and duty requiring, in consideration of the general welfare, an organized governmental agency for the management of their local affairs of a quasi public nature. State v. Town of Lake Placid, 109 Fla. 419, 147 So. 468. L121 The power to establish a municipality may not lawfully he so exercised as to he an abuse of power or authority to incorporate an area where there is no resident population or where the population is so small and disproportionate to an enormously excessive area included in the boundaries, when the patently and grossly excessive area is not suitable for municipal purposes, and cannot he benefited by the municipality or its public facilities or improvements, and cannot be needed for a reasonably expected growth of the mu - Page 19 nicipality or the needs of the municipality. State v. City of Sarasota, 92 Fla. 563, 109 So. 473; State v. Stuart, 97 Fla. 69, 120 So, 335, 64 A.L.R. 1307; State v, Avon Park. [08 F[a. 641, 149 So. 409; State v, Town of Lake Placid, 109 Fla. 419, 147 So. 468: State v. Pompano. 113 Fla. 246, 151 So. 485; State v. Fort Lauderdale, 102 Fla. 1019. 136 So, 889; State v. Homestead, 100 Fla. 361, 130 So. 28; *368State v. Largo, 110 Fla. 21, 149 So. 420; Olds v. State, 101 Fla. 218, 133 So. 641. 1131 The Constitution commands that when a municipality is abolished, provision shall be made for the protection of its creditors. State v. Goodgame, 91 Fla. 871, 108 So. 836, 47 A.L.R. 118; Humphreys v. State, 108 Fla. 92. 145 So, 858; Town of San Mateo v. State, 117 Fla, 546, 158 So. 112; State v. Peacock, 112 Fla. 671, 151 So. 4. The principle of the above organic command contemplates that where lands are with- drawn from a municipality, such land shall continue to he liable to taxation for the debts of the town or city unless the creditors are otherwise fully protected. See Humphreys v. State, 108 Fla, 92, 145 So. 858; State v. City of Miami, 101 Fla. 292, 134 So. 608. 11411151 A statute incorporating lands into a mu- nicipality is not ipso facto or even prima facie uncon- stitutional on the ground that some of the lands may be adjudged to be unsuited for municipal purposes, or that some of the lands cannot be benefited by such incorporation; for such matters are within the legisla- tive judgment, unless by due course of law a violation of a provision of the Constitution is adjudged; and such adjudication ordinarily has to he made upon evidence aliunde the statute. A statute not patently unconstitutional on its face is prima facie and pre- sumptively valid; and rights acquired bona fide under such a statute are property rights protected by the State and Federal Constitutions. **168 As section 16, article 3 of the Constitution, which rendered invalid the portion of chapter 11301 because of the defective title of the act, operated upon the form or manner of the enactment and did not negative the power of the Legislature to include lands in the city limits, the statute, not being invalid on its face, was prima facie and presumptively valid in its entirety, and so remained until the *369 quo warranto judgment ousted the city from its prima facie de jure jurisdiction conferred by chapter 11301 over the above -stated added area. But such ouster did not de- 0 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 181 So. 153 132 Fla. 334, 181 So. 153 (Cite as: 132 Fla. 334, 181 So. 153) prive the city of its de facto jurisdiction and authority, which (consistently with the Constitution and statutes of the state and without affecting the ouster judgment) the law raises to protect and enforce organic rights lawfully acquired pursuant to the exercise by the city of the prima facie and presumptively valid jurisdiction and authority conferred upon the city by chapter 11301. Some of the provisions of the State Constitution relate to and control the form and manner of enacting statutes; e. g., sections 16, 17, article 3. Some provi- sions relate to and control the power of the Legislature to enact stated subjects of legislation; e. g., section 5, article 9 and section 6, amended in 1930; section 30, article 3, and other provisions contain commands or prohibitions addressed to the Legislature or to other departments of the government, or to all; e. g., section 7, article 9. Section 23, article 3, the enacting clause prescribed by section 15, article 3, is a prime essential to the validity of a law. In re Advisory Opinion, 43 Fla. 305, 31 So. 348. i1611171 Statutes that are not patently and indu- bitably void or unconstitutional on their face are prima facie and presumptively valid and constitutional; and they so remain, subject to be duly adjudicated to be in whole or in part in conflict with express or implied provisions of the paramount law or to be otherwise inoperative in whole or in part. This rule is particularly applicable where the illegality alleged is the legal insufficiency of the title to express the subject em- braced in the body of the act, since the Legislature has wide latitude in selecting and expressing subjects of legislation, and the courts do not adjudge a title to a legislative enactment to be in violation of section 16, *370 article 3, unless the title is misleading and such violation appears beyond any doubt, so as to make it the duty of the courts to sustain the Constitution when a statute indubitably conflicts therewith. See Hiers v. Mitchell. 95 Fla. 345. 116 So. 81: State v. Hand, 96 Fla. 799, 119 So. 376, The public had a right to pre- sume that chapter 11301 was valid as an entirety. 1181 Section 16, article 3, of the Constitution, is mandatory in its provisions; and a legislative enact- ment which violates this section is invalid ab initio. The section does not relate to a specific subject of legislation, as does section 17, article 12, nor does it relate to subjects that shall not be included in the statute, as does section 6, article 9, amended in 1930, Page 20 and section 30, article 3; but it relates to the form and manner of expressing the subjects of the enactments in the titles of the acts. If the organic invalidity is patent upon the face of the enactment, or if it violates a command or prohibition of the Constitution affecting the nature of the subject matter and not merely the form or manner of the enactment, it is, ipso facto, void, and no rights may be acquired under it. Nuveen & Co. v. City of Quincy, 115 Fla. 510, 156 So. 153, 94 A.L.R. 600: State ex rel. Nuveen v. Greer, 88 Fla, 249, 102 So. 739, 37 A.L.R. 1298. If the enactment relates to municipal jurisdiction that the Legislature has power to confer, and it is not unconstitutional on its face, but may be duly adjudged to be unconstitutional by appropriate allegations and evidence aliunde the enactment, and if it is adjudged to be unconstitutional, it is so ab initio; but if rights are duly and bona fide acquired under the enactment before it is adjudged to be unconstitutional, there may in law be a de facto municipal jurisdiction that is recognized and utilized by the courts in protecting and enforcing organic rights duly acquired before the illegality of the en- actment is adjudged. State ex rel. v. City of Cedar Keys, 122 Fla. 454, 165 So. 672; *371City of Winter Haven v. Gillespie, 5 Cir., 84 F.2d 285; West v. Town of Lake Placid, 97 Fla. 127, 120 So. 361. In this case the invalidity of a portion of chapter 11301, Sp.Acts. of 1925, is because of the insuffi- ciency of the title of the act to include a portion of the lands attempted to be embraced in chapter 11301, which invalidity is as to the form and manner of the enactment and did not **169 go to the power of the Legislature to incorporate land; and such invalidity did not appear on the face of the statute, and had to be shown by evidence; and because of the action taken under the prima facie and presumptively valid statute, the doctrine of de facto jurisdiction of the municipality over the lands not legally but in fact in the municipal- ity by statutory description is properly applied under the state and federal decisions establishing the doc- trine of de facto jurisdiction of municipalities estab- lished by statutes, See cases last above cited. In Wade v. Atlantic Lumber Co., 51 Fla. 628, 41 So. 72, and like cases, the doctrine of de facto municipal jurisdic- tion could not be applied. Section 16, article 3, does not relate to particular subjects of legislation as do section 7, article 9, and section 17, article 12; but like sections 15 and 17, article 3, section 16 is applicable to every legislative © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 181 So. 153 132 Fla. 334, 181 So. 153 (Cite as: 132 Fla. 334,181 So. 153) enactment. Ordinarily and generally when a statute violates section 16, article 3, it appears by a consid- eration of the face of the statute with the organic sec- tion, as in Carr v. Thomas, 18 Fla. 736; Wade v. At- lantic Lumber Co., 51 Fla. 628, 41 So. 72; Prairie Pebble Phosphate Co. v. Silverman, 80 Fla. 541, 86 So. 508. State v. Palmes, 23 Fla. 620, 3 So. 171; Webster v. Powell, 36 Fla. 703, 18 So. 441., Ex parte Knight, 52 Fla. 144, 41 So. 786, 120 Am.St.Rep. 191; Ex parte Gilletti, 70 Fla. 442, 70 So. 446. In this case a part of chapter 11301 violates the first clause of section 16, article 3, in that the descrip- tion of *372 the boundaries of the city of Winter Ha- ven as contained in chapter 11301 does not show on its face that it embraces more area than that which was theretofore in the city plus the added area that had been included in the abolished town of Florence Villa, which two latter areas alone were covered by the title. That an area not theretofore incorporated was added to the city limits by the contents of chapter 11301, but not covered by the title of the act, was shown by evi- dence aliunde chapter 11301, in the quo warranto proceedings, and a judgment was rendered ousting the city from jurisdiction and authority over the added area. The statutory descriptions of the areas thereto- fore included in the city of Winter Haven and the boundaries of the town of Florence Villa had to be examined before it appeared that chapter 11301 con- tained descriptions of land not covered by the title of the act; viz., description of areas that had not been in the city or in Florence Villa. 1191[201 When a question is duly presented as to whether a portion of a statute is embraced in the sub- ject expressed in the title of the statute, or as to whether it is matter properly connected with the sub- ject expressed in the title of the statute, the question is to be determined as a matter of law; but prima facie and presumptively such portion is sufficiently covered by the title of the act, at least unless it is patently ob- vious that it is not, which affords notice to everyone; and if such portion of the statute does not appear by the face of the statute, considered with the Constitu- tion, to be not covered by the title of the act within the intent and meaning of section 16, article 3 of the Constitution, it must be shown by evidence aliunde in appropriate judicial proceedings, as was done in State v. City of Winter Haven, 114 Fla. 199, 154 So. 700. In the Nuveen and Weinberger Cases, the unconstitu- tionality of the *373 statute appeared on the face of the Page 21 law considered with the Constitution. 1211 In such cases whether the controverted por- tion of a statute is, or is not, sufficiently covered by the title of the statute, as required by the State Constitu- tion, is a matter for State, and not for federal, juris- diction. See Chicago, M. St. P. & P. R. Co. v. Risty, 276 U.S. 567, 48 S.Ct. 396, 72 L.Ed. 703; Forsyth v. Hammond, 166 U.S. 506, 17 S.Ct. 665, 41 L.Ed. 1095. In the North Miami Case, Ocean Beach Heights, et al. v. Brown-Crummer Inv. Co., 58 S.Ct. 385, 82 L.Ed. , the general statutes gave the inhabitants of the community authority to incorporate land, but not noncontiguous land. In attempting to incorporate noncontiguous lands, the inhabitants did not merely defectively exercise their authority, but they assumed to exercise an authority not given them, viz., to in- corporate noncontiguous lands. Town of Enterprise v. State, 29 Fla. 128, 10 So. 740. In this case the Constitution gave the Legislature authority to incorporate lands whether contiguous or not; but the Legislature must exercise its authority by statute enacted as required by section 16, article 3 of the Constitution. Chapter 11301 incorporated lands as authorized by section 8, article 8, Constitution, but some of the lands so incorporated were not embraced in **170 the title of the act. This was a defective ex- ercise of the power conferred by section 8, article 8 of the Constitution; but the statute did not assume to include lands it had no authority to incorporate. Thus in the North Miami Case, supra, there was no authority of the inhabitants to incorporate noncon- tiguous lands, while in this case the statute, chapter 11301, was a defective exercise by the Legislature of its power to incorporate all the lands, *374 by not making the title sufficiently comprehensive to include a part of the lands described in the body of the act. There was no statutory validation or incorporation in the North Miami Case, as in Schultz v. State, 80 Fla. 564, 86 So. 428. See, also, State v. Eddy, 95 Fla. 978, 117 So. 377. In this case there was a statutory incor- poration of lands; and the defect in incorporating a part of the land did not go to the power to incorporate the land, but to the form of the enactment; and the defect did not appear on the face of the statute, but had to be shown aliunde in the quo warranto proceedings. Even if the portion of the lands included in © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 181 So. 153 132 Fla. 334, 181 So. 153 (Cite as: 132 Fla. 334, 181 So. 153) chapter 11301 were of such a nature and so situated that the city could have been ousted of jurisdiction of them on that ground, that did not appear by the statute, and would have to be shown aliunde. If the area had been excluded by statute after the land had become subject to taxation to pay bonds, the statute so ex- cluding the land would be void as violating the obli- gation of the bond contracts, even if the jurisdiction of the municipality over the land be merely de facto; and there can be de facto municipal jurisdiction over lands that are defectively incorporated by a statute not void on its face, though there can be no de facto jurisdiction over noncontiguous lands attempted to be incorpo- rated by inhabitants under the general statutes which do not give inhabitants authority to incorporate non- contiguous land, and no statute has incorporated or authorized the incorporation of noncontiguous lands by the inhabitants, or otherwise, as may be in accord with organic law. State v. Rodes, 115 Fla. 259, 151 So. 289, 155 So. 852. 1221 The doctrines of de jure and of de facto mu- nicipal jurisdiction and powers, and of de jure and de facto officers and of de jure and de facto corporations existed in this state when the present Constitution of Florida was adopted. *375 Such doctrines are not inconsistent with the Constitution and statutes of the state, and they have been recognized and applied in proper cases. If there is a prima facie and presump- tively valid statutory de jure municipality, or if there is prima facie and presumptive jurisdiction or authority over an added area to the boundaries of a municipality, there may be de facto municipal existence or jurisdic- tion. See West v. Town of Lake Placid, 97 Fla. 127, 120 So. 361. But if there is no authority for conferring de jure municipal jurisdiction or authority, there can be no de facto jurisdiction or power. Ocean Beach Heights v. Brown-Crummer Inv. Co,. 58 S.Ct. 385, 82 L.Ed. , Town of Enterprise v. State. 29 Fla. 128, 10 So. 740. J231[24 [ Likewise if there is no office and no authority to create an office, there can be no de facto officer. But if the Legislature has authority to create an office and by statute defectively exercises the author- ity, or if there is no officer holding de jure, there may be a de facto officer under color of authority. Norton v. Shelby County, 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178: State v. Gleason, 12 Fla. 190, 233; Sawyer v. State, 94 Fla. 60, 113 So. 736. There can be no de facto corporation unless a de jure corporation could Page 22 have been created by or pursuant to a valid statute, or unless it is attempted to be created in substantial compliance with legal authority for creating a de jure corporation. Duke v. Taylor. 37 Fla. 64. 19 So. 172, 31 L.R.A. 484, 53 Am.St.Rep. 232; Booske v. Gulf Ice Co., 24 Fla. 550, 5 So. 247. The de facto jurisdiction and authority of a mu- nicipality are recognized by the law as a means of protecting and enforcing rights bona fide acquired under a prima facie and presumptively valid statute, or under authority conferred by statute where the au- thority conferred, or attempted to he conferred, could have been conferred and is exercised in *376 good faith and within the authority that could legally have been, and was attempted to be, conferred. In this case: (1) There was a valid general law, viz., section 8, article 8, Constitution, under which chapter 11301 could have added the stated area to the city limits; (2) There was a legislative attempt in chapter 11301 to add the area to the city limits; (3) There has been actual uses of the jurisdiction attempted to be conferred by **171 chapter 11301, and rights have been acquired thereunder, See Tulare Irrigation Dist. v. Shepard, 185 IJ.S, 1, 13, 22 S.Ct. 531, 46 L.Ed. 773. In Duke v. Taylor, 37 Fla. 64, 19 So. 172, 31 L.R.A. 484, 53 Am.St.Rep. 232. the corporate power could have been acquired under the statute, but no bona fide attempt was made to pursue the state statute under which the corporate authority could have been obtained, I-251[261[271 The provision of section 5, article 9, of the Constitution, that 'the cities and incorporated towns shall make their own assessments for municipal purposes upon the property within their limits,' does not forbid municipal taxation of land that was by statute included in the limits of a municipality, though the jurisdiction and authority of the municipality be ousted from the land, where rights have been acquired predicated upon de facto power to tax the land before the municipal jurisdiction and authority over the land 0 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 181 So. 153 132 Fla. 334, 181 So. 153 (Cite as: 132 Fla. 334, 181 So. 153) was ousted. If lands are excluded from the munici- pality by statute after organic rights had been ac- quired. it would violate the obligation of contracts, contrary to the State and Federal Constitutions. State v. Town of Holly Hill, 128 Fla. 385, 174 So. 818. If the ouster of municipal jurisdiction and authority over an area *377 in the statutory city limits be by judicial judgment after such rights had accrued, it would be the deprivation of property rights without due process of law, if the lands do not remain subject to appropriate taxation. See State v. City of Cedar Keys. 122 Fla. 454, 165 So. 672. Though the taxpayer plaintiff does not challenge the validity of the bonds for the payment of which his land is taxed, the authority to issue the bonds and to levy the tax for authorized municipal purposes should and does appear. The statute, chapter 11299, § 88, limits the amount of bonds to 10 per cent. of the value of the property in the city and required the annual levy of a tax necessary to pay the bonds for duly authorized municipal purposes. This complied with sections 3 and 5 of article 9 of the Constitution; and there is no unlimited or unlawful delegation of the sovereign power of taxation to the municipality. There is no suggestion that section 6, article 9, Constitution, as amended in 1930, was not complied with after its adoption. 1281 Where, pursuant to valid statutory authority, negotiable bonds to be paid by taxation are duly issued and sold bona fide by a dc jure municipality to obtain funds for authorized municipal public improvement purposes, such negotiable bonds are binding contract obligations of the municipality to be paid by taxation as provided by law upon all the taxable property within the municipality at the time the bonds are is- sued and sold, unless otherwise provided in the law or proceedings authorizing the bonds to be is- sued. Humphreys v. State, 108 Fla. 92. 145 So. 858; State ex rel. v. Lehman, 100 Fla, 1313, 131 So. 533. This rule of the contract obligations of such duly issued municipal bonds is applicable to taxable lands that were in the limits of a de jure municipality when the bonds were issued, but which were subsequently excluded by statute. *378 Such lands, though ex- cluded from the municipality, remain subject to the right of the municipality, exerting de facto jurisdiction Page 23 and of the right of bona fide holders of the negotiable bonds, to have the lands legally and appropriately taxed as authorized by law, in common with the lands remaining in the municipality, to pay the bonds under the law in force and applicable when the bonds were issued. State v. Town of Holly Hill, 128 Fla. 385. 174 So. 818. The same rule applies when the municipality had only de facto existence and jurisdiction over the lands. State ex rel. v. City of Cedar Keys, 122 Fla, 454, 165 So. 672; Henderson v. Town of Lake Placid, Fla., 181 So. 177. filed January 8, 1938; City of Winter Haven v. Gillespie, 5 Cir. 84 F.2d 285; State ex rel. v. Walthall, 124 Fla, 866, 169 So. 552; State ex rel. v. Walthall, 125 Fla. 423, 170 So. 115; West v. Town of Lake Placid, 97 Fla. 127. 120 So. 361; Speer v. Board of Com'rs of Kearney County, 8 Cir., Clapp v. Otoe County, 8 Cir., 104 F. 473, 45 C.C.A. 579. A like rule applies when it is attempted by statute or constitutional amendment to exempt lands from taxation resulting in a violation of the organic com- mands that no law shall be passed violating the obli gation of contracts. Section 17, Declaration of Rights, Florida Constitution; section 1, art. 10, Federal Con- stitution; Boatright v. City of Jacksonville, 117 Fla. 477, 158 So. 42; Gray V. Moss, 115 Fla. 701. 156 So. 262: State v. City of Pensacola, 123 Fla. 331, 166 So. 851. **172 The city of Winter Haven is a legally ex- isting municipality. The city exercised the municipal authority conferred by chapter 11.299 over all the territory described in chapter 11301, as being within the city boundaries. Duly authorized municipal bonds, to be paid by taxation of all taxable property in the city, were issued, validated, sold, and used for au- thorized municipal public improvements, some *379 of which improvements were made in the area which embraces plaintiffs land. Afterwards, by quo warranto judgment. the city was ousted of authority over an area including plaintiffs land. Upon the principles stated and the authorities cited herein, the holding in this case is that the city of Winter Haven had and continues to have de facto jurisdiction and authority to appro- priately tax plaintiff's land along with other lands described in chapter 11301 to pay operating expenses of the city before the rendition of the judgment of ouster and also to pay the bonds, and that the decrees appealed from should be severally reversed, and the cause remanded for further appropriate proceedings by due course of law. 0 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 181 So. 153 132 Fla. 334, 181 So, 153 (Cite as: 132 Fla. 334, 181 So. 153) Reversed and remanded. ELLIS, C. J., and TERRELL, BROWN, BUFORD, and CHAPMAN, JJ., concur. On Petition for Rehearing. PER CURIAM. [291 In a petition for rehearing it is suggested, among other matters, that in the quo warranto case, State ex rel. v. City of Winter Haven, 1 14 Fla. 199, 154 So. 700. the court held that the title to chapter 11301, Sp.Acts of 1925, was misleading and con- tained nothing to apprise the Legislature or the public that other lands than those included in the old city of Winter Haven and the adjacent former town of Flor- ence Villa were being included within the boundaries of the city of Winter Haven; and that it therefore ap- pears the Legislature `did not intend to include the excluded lands, nor was the public, including bond- holders, misled by the inclusion thereof,' As shown by the body of chapter 11301, the Legislature did manifest an intent to include in the boundaries of the city of Winter Haven the area in which plaintiffs land *380 is located; and that legis- lative intent would be the law, if the Legislature had not violated section 16, article 3 of the Constitution, by making the title of the act too restrictive to express the entire subject of the act. The restrictive title ren- dered invalid the portion of the body' of the act which is not covered by the subject expressed in the title. Such partial invalidity does not go to the power of the Legislature to include the land in the city, but to the contents of the title as used in expressing the subject of the act by which the power of the Legislature is exer- cised. [301 Section 16, article 3 of the Constitution, does not forbid or limit particular subjects of legislation, as do other organic sections, but commands that 'each law enacted in the Legislature shall embrace but one subject and matter properly connected therewith, which subject shall be briefly expressed in the title' etc. In enacting laws every legislative bill has a title which is designed to indicate the subject that is em- braced in the proposed law; and the quoted organic command requires the title to briefly express the sub- ject of the pending enactment so that the nature of the subject of the act may he truly indicated by reading the Page 24 title. See State ex rel. v. Green, 36 Fla. 154, 18 So. 334. [311 Chapter 11301, Sp.Acts of 1925, in the body of the act, amends chapter l 1299, Sp.Acts of 1925, by adding to the area of the city of Winter Haven under the latter act, the area of the abolished town of Flor- ence Villa and other lands not theretofore incorpo- rated. The act was in its entirety prima facie and pre- sumptively a valid enactment. This status of the statute remained until in quo warranto proceedings a portion of the act adding lands to the city boundaries was shown aliunde and adjudged to have been illegally included in the statute under its restrictive title. *381 The body of chapter 11301, Sp.Acts of 1925, amending chapter 11299, so as to add areas to the city boundaries, contained descriptions of lands designed to he added to the boundaries of the city of Winter Haven under a title which casually considered apparently covered the lands described in chapter 11301 amending chapter 11299, as being the area of the city, Evidence aliunde chapter 11301 was required to show the title of the act was too restricted to cover all the lands described in the act as being the bounda- ries of the city. This was not merely `color of law' as to the boundaries of the city under the act, but the act was prima facie and presumptively a valid enactment in its entirety, and the city exercised defacto**173 jurisdiction over the res pursuant to chapter 11301. [321 In the quo warranto case ( State ex rel. v. City of Winter Haven, 114 Fla. 199, 154 So. 700) this court affirmed the judgment of partial ouster after finding upon a showing aliunde that the title to chapter 11301 was too restrictive to express the entire subject em- braced in the body of the act. It was not determined whether any of the lands illegally included in the city limits by chapter 11301 could legally be subjected to municipal jurisdiction because of their location or character, Questions as to the exercise of de facto jurisdiction and the consequences thereof were not determined by this court in that action, and the judg- ment as affirmed is not res adjudicata except as to the adjudged insufficiency of the title of chapter 11301 to embrace the added area which includes plaintiffs land. The quo warranto judgment ousted the de jure city from further exercising the asserted de jure juris- diction over the area including plaintiffs land, under 0 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items D1.3 on 02-14-13 Todd B. Hannon 181 So. 153 132 Fla. 334, 181 So. 153 (Cite as: 132 Fla. 334, 181 So. 153) chapter 11301; but it did not relieve the city of its legal obligations incurred under the statutes; nor destroy legal rights acquired under the law, while the city was exercising de facto jurisdiction *382 over the land under a prima facie and presumptively valid inclusion of the stated area in the described boundaries of the city contained in chapter 11301. See State ex rel. Fi- delity Life Assn v. City of Cedar Keys. 122 Fla, 454, 165 So. 672; Speer v. Board of Com'rs, 8 Cir., 88 F. 749, 32 C.C.A. 101., Clapp v. Otoe County, 8 Cir., 104 F, 473, 45 C.C.A. 579. [331 Validating decrees adjudicate the validity of proposed issues of municipal bonds; but whether lands, over which a de jure city exercises de facto jurisdiction when negotiable municipal bonds are issued. are subject to taxation to pay the bonds, is to be determined by appropriate judicial procedure. If the lands were and are of such a nature and so located as to make their taxation for municipal purposes violate property rights secured by organic law, or if under the dominant law the lands are not subject to municipal taxation, that may be duly adjudicated in appropriate proceedings in which questions of the powers of the municipality as well as of waiver or estoppel of the land owners may be presented for determination. [34 [ In this case it is held that illegal taxes may be enjoined. Plaintiff seeks to have enjoined the collec- tion of municipal taxes alleged to be illegally assessed against its property, and relies upon a ground which this court holds to be unavailing under the law. This is not a denial of due process or of equal protection. If plaintiff has a right to relief that is riot waived or barred, it may be litigated. Under chapter 11299. Sp.Acts of 1925, the city in this case is a de jure, not merely a de facto, munici- pality. In the quo warranto proceedings the asserted de jure jurisdiction of the city over certain lands under chapter 11301 was challenged and the city authorities were ousted from jurisdiction over the particular lands. This did not determine rights and obligations flowing from the exercise by the de jure city of de facto jurisdiction over the lands which *383 were by a presumably valid enactment included in the city lim- its, even though such jurisdiction of the city over the lands was, because of a defect in the title of chapter 11301. ousted by a judgment in quo warranto; such judgment of ouster having been rendered after the city had issued negotiable bonds for authorized municipal Page 25 purposes and pledged the taxing power of the city over all the lands in its limits to pay the bonds. The de facto jurisdiction of the city over the res is not 'predicated solely upon validation of the bonds,' as shown by the opinion of the court. The judgment of ouster was affirmed, not be- cause the stated area was not a proper subject of leg- islation in the statute, but because the title of the act did not indicate that the particular area was in fact included in the boundaries described in the act. Plaintiff is not by the decision in this case denied equal protection or due process of law or deprived of the substantial fruits of the litigation in the quo war- ranto proceedings in which plaintiff was a co -relator, since the quo warranto judgment did not adjudicate the rights and obligations flowing from the exercise of de facto jurisdiction by a de jure municipality. Some of such matters are here being litigated. The quo warranto judgment was rendered after the bonds of the city were validated by judicial de- crees, and the legal inclusion of the res in the city limits could not be litigated or determined in the val- idating proceedings which related to the validity of the bonds, and not to whether lands were illegally in- cluded in the act amending the city charter. It does not appear that the record **174 in the validating pro- ceedings showed any invalidity in the inclusion of lands in the city limits or that the bonds were not legally issued. *384 Between the effective date of chapter 11301 and the date of the quo warranto judgment ousting the city authorities from jurisdiction over the area adjudged to have been illegally included in the city limits, the city of Winter Haven, being a de jure municipality under chapter 11299, had unquestioned de jure jurisdiction over all the area described in chapter 11301, except the separate area which in- cludes plaintiffs land. And until the judgment of ouster, the city also had and exercised actual and prima facie de jure jurisdiction over the latter area predicated upon a presumptively valid statutory in- clusion of such area in the boundaries of the city as described in chapter 11301. The Legislature had the power, under section 8, article 8 of the Constitution, to include in the city 0 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd fl. Hannon 181 So. 153 132 Fla. 334, 181 So. 153 (Cite as: 132 Fla. 334,181 So. 153) limits all of the lands described in chapter 11301. But the defective exercise of such power by the Legisla- ture in enacting the statute without complying with the Constitution as to the manner and form of expressing the subject of the law in the title of the enactment caused a portion of the described area to be illegally included in the city. Yet the city, being a de jure mu- nicipality, was presumptively justified in exercising jurisdiction over such area in the manner provided by law. Such exercise of jurisdiction by the de jure city was de facto and presumptively de jure: and the rights and obligations flowing from the exercise of such de facto jurisdiction were not involved in the quo war- ranto proceedings; and the judgment therein did not affect any rights or obligations arising from such ex- ercise of de facto jurisdiction. After the quo warranto judgment of partial ouster, the rights lawfully acquired under the pre-existing de facto and prima facie de jure jurisdiction of the city over the lands in the illegally added area may be enforced under the doctrine of de facto jurisdiction of municipalities and their correla- tive rights and obligations. No contract rights *385 are thereby violated, and the due process of law clause is not violated. The citizens and taxpayers had notice of the exercise by the city of the de facto jurisdiction over the area; and the citizens and taxpayers are bound by the judicial decrees validating the bonds as provided by statute. The commands of the Constitution that all men shall have rights of 'acquiring possessing and protecting property,' and that no person shall be 'de- prived of life, liberty, or property without due process of law,' `nor shall private property be taken without just compensation,' Const. Declaration of Rights, §§ 1, 12, should be made effective in proper cases. 1'351 A de jure municipality cannot issue nego- tiable bonds for authorized municipal purposes, by the exercise of de facto jurisdiction, and refuse to com- pensate therefor without violating organic law, where the bonds are authorized by statute and are not issued in violation of a command or prohibition of the Con- stitution affecting the authority to issue the bonds or the terms or purposes thereof. 1361 All parties are bound by the quo warranto judgment; but such judgment did not adjudicate the rights and obligations litigated in this case, which result from the exercise by a de jure municipality of de facto jurisdiction over lands that were under a pre- sumptively valid statute incorporated in the municipal limits at the time when municipal bonds were issued Page 26 for authorized municipal purposes, for the payment of which bonds the taxing power of the city over all the lands in the city was pledged. The particular lands were included in the city limits by statutory enactment when the municipal bonds were issued, validated and used for duly authorized municipal purposes. All of the citizens or taxpayers of the city were by the statute made parties to the bond validating proceedings, and the decrees therein are by the terms of the statute binding on all. [371 *386 If under section 8, article 8 of the Constitution, a statute embraces in the boundaries of a municipality land that cannot be taxed for municipal purposes without violating some provision or princi- ple of organic law, that matter may be determined in appropriate judicial proceedings, so that `by due course of law' 'right and justice shall be administered' by the `courts in this State.' Section 4, Declaration of Rights. See State ex rel. v. City of Avon Park, 108 Fla. 641. 149 So, 409; State ex rel. v. Town of Lake Placid, 109 Fla. 419, 147 So. 468. Such matters cannot be determined in bond validating proceedings. See West v. Town of Lake Placid, 97 Fla. 127, 120 So. 361. It does not clearly appear that the city is enforc- ing taxes for operating expenses **175 on lands from which the jurisdiction of the city has been ousted by the quo warranto judgment. Rehearing denied. WHITFIELD, TERRELL, BROWN, BUFORD, and CHAPMAN, JJ., concur. Fla. 1938 City of Winter Haven v. A. M. Klemm & Son 132 Fla. 334, 181 So. 153 END OF DOCUMENT © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items D1.3 on 02-14-13 Todd B. Hannon W stlaw. 98 S.Ct. 694 Page 1 434 U.S. 412, 98 S.Ct. 694, 16 Fair Empl.Prac.Cas. (BNA) 502, 15 Empl. Prac. Dec. P 8041. 54 L.Ed.2d 648 (Cite as: 434 U.S. 412, 98 S.Ct. 694) Supreme Court of the United States CHRISTIANSBURG GARMENT CO., Petitioner, v. EQUAL EMPLOYMENT OPPORTUNITY COM- MISSION. No. 76-1383. Argued Nov. 28, 29, 1977. Decided Jan. 23, 1978. Two years after employee filed race discrimina- tion charge with the Equal Employment Opportunity Commission, the EEOC notified her that its concilia- tion efforts had failed. Almost two years later, when Civil Rights Act was amended to permit the EEOC to sue in its own name with respect to charges pending on effective date of the 1972 amendments, the Com- mission brought an action against the employer. The employer's motion for summary judgment on the ground that the charge was not pending on the effec- tive date of the amendments was granted. Employer then sought award of attorneys fees as the prevailing party. The United States District Court for the Western District of Virginia denied the motion and employer appealed. The Court of Appeals, 550 F.2d 949, af- firmed and certiorari was granted. The Supreme Court, Mr. Justice Stewart, held that attorneys fees should be awarded to prevailing defendant when the plaintiffs action is shown to have been frivolous, unreasonable, or without foundation. even though not brought in subjective bad faith, but (2) trial court did not abuse its discretion in determining that the Com- mission's interpretation of the 1972 amendments was not frivolous. Affirmed. West Headnotes L11 Federal Civil Procedure 170A '2737.14 170A Federal Civil Procedure 170AXIX Fees and Costs I70Ak2737 Attorney Fees 170Ak2737.14 k. Miscellaneous Matters. Most Cited Cases (Formerly 170Ak2737) In the absence of legislation providing otherwise, litigants must pay their own attorneys fees. IJ Civil Rights 78 C--11590 78 Civil Rights 78IV Remedies Under Federal Employment Dis- crimination Statutes 78k1585 Attorney Fees 78k1590 k. Results of Litigation; Prevailing Parties, Most Cited Cases (Formerly 78k414, 78k46(25). 78k46) Under the Civil Rights Act, a prevailing plaintiff is ordinarily to be awarded attorneys fees in all but special circumstances. Civil Rights Act of 1964, § 706(k) as amended 42 U.S.C.A, § 2000e-5(k). JJ Civil Rights 78 €1592 78 Civil Rights 78IV Remedies Under Federal Employment Dis- crimination Statutes 78k1585 Attorney Fees 78k1592 k. Awards to Defendants; Frivo- lous, Vexatious, or Meritless Claims. Most Cited Cases (Formerly 78k415, 78k46(26), 78k46) If Congress had intended to permit the award of attorneys fees in a civil rights action to a prevailing defendant only in a situation where the plaintiff was motivated by bad faith in bringing the action, no stat- utory provision would have been necessary for it has long been established that, even under the American common-law rule, attorneys fees may be awarded against a party who has proceeded in bad faith. J� Civil Rights 78 C-1592 78 Civil Rights 78IV Remedies Under Federal Employment Dis- crimination Statutes 0 2013 Thomson Reute No Claim to Orig. US Gov. Works. 98 S.Ct, 694 Page 2 434 U.S. 412, 98 S.Ct. 694, 16 Fair Empl.Prac.Cas. (BNA) 502, 15 Empl. Prac. Dec. P 8041, 54 L.Ed.2d 648 (Cite as: 434 U.S. 412, 98 S.Ct. 694) 78k1585 Attorney Fees 78k1592 k. Awards to Defendants; Frivo- lous, Vexatious, or Meritless Claims, Most Cited Cases (Formerly 78k416, 78k46(27), 78k46) District court may, in its discretion, award attor- neys fees to prevailing party in a Civil Rights Act case upon a finding that the plaintiffs action was frivolous, unreasonable, or without foundation, even though not brought in bad faith, Civil Rights Act of 1964, § 706(k) as amended 42 U.S.C.A. § 2000e-5(k). LJ Civil Rights 78 4C)1592 78 Civil Rights 78IV Remedies Under Federal Employment Dis- crimination Statutes 78k1585 Attorney Fees 78k1592 k. Awards to Defendants; Frivo- lous. Vexatious, or Meritless Claims. Most Cited Cases (Formerly 78k415, 78k46(26), 78k46) Even though bad faith is not a prerequisite to award of attorney's fees to prevailing defendant. if plaintiff is found to have brought civil rights action or to have continued such an action in bad faith, there will be an even stronger basis for charging him with attorneys fees incurred by the defense. Civil Rights Act of 1964, § 706(k) as amended 42 U.S.C.A. § 2000e-5(k). 115_1 Civil Rights 78 (:,1592 78 Civil Rights 78IV Remedies Under Federal Employment Dis- crimination Statutes 78k1585 Attorney Fees 78k1592 k, Awards to Defendants; Frivo- lous, Vexatious, or Meritless Claims. Most Cited Cases (Formerly 78k415, 78k46(26), 78k46) Although district court may consider distinctions between Equal Employment Opportunity Commission and private plaintiffs in determining the reasonable- ness of the Commission's litigation efforts, there is no basis for applying a different standard to the decision to award attorneys fees to the prevailing defendant when the EEOC is the losing plaintiff. Civil Rights Act of 1964. § 706(k) as amended 42 U.S.C,A. § 2000e-5(k). El Civil Rights 78 e=4592 78 Civil Rights 78IV Remedies Under Federal Employment Dis- crimination Statutes 78k1585 Attorney Fees 78k1592 k. Awards to Defendants; Frivo- lous, Vexatious, or Meritless Claims. Most Cited Cases (Formerly 78k416, 78k46(27), 78k46) Even though Equal Employment Opportunity Commission did not bring action against employer until almost two years after 1972 amendment to the Civil Rights Act which authorized it to sue in its own name on charges pending on the effective date of the amendments, district court did not abuse its discretion in determining that the EEOC's action was not without foundation because of the reasonableness of the EEOC's determination that the action was pending at the time of the 1972 amendments so that district court did not err in refusing to award attorneys fees to the employer when it prevailed on the ground that the complaint had not been pending at the time of the 1972 amendments, Equal Employment Opportunity Act of 1972, § 14, 42 U.S.C.A. § 2000e-5 note; Civil Rights Act of 1964, § 706(k) as amended 42 U,S,C.A. § 2000e-5(k), **695 *412 Syllabus FN. FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the conven- ience of the reader, See United States v. De- troit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499. Two years after a racial discrimination charge under Title VII of the Civil Rights Act of 1964 had been filed against petitioner company, respondent, the Equal Employment Opportunity Commission (EEOC), notified the complainant that its conciliation efforts had failed and that she had the right to sue the company, which she did not **696 do. Almost two years later, § 14 of the 1972 amendments to Title VII authorized the EEOC to sue in its own name on 0 2013 Thomson Reuters. No Claim to Orig. US Gov, Works. Submitted into the public record in connection with items DI.3 On 02-14-13 Todd B. Hannon 98 S.Ct. 694 Page 3 434 U.S. 412, 98 S.Ct, 694, 16 Fair Empl.Prac.Cas. (BNA) 502, 15 Empl. Prac. Dec. P 8041, 54 L.Ed.2d 648 (Cite as: 434 U.S. 412, 98 S.Ct. 694) charges "pending" with the EEOC on the effective date of the amendments. The EEOC then sued peti- tioner on complainant's charge and the District Court granted petitioner's motion for summary judgment on the ground that the charge had not been "pending" at the time of the 1972 amendments. The company then petitioned for the allowance of attorney's fees against the EEOC pursuant to § 706(k) of Title VII, which authorizes a district court in its discretion to allow the prevailing party a reasonable attorney's fee. Finding that the EEOC's action in bringing the suit was not "unreasonable or meritless" and that its statutory in- terpretation of § 14 was not -frivolous," the District Court ruled that an award to petitioner of attorney's fees was not justified. The Court of Appeals affirmed. Held : 1. Although a prevailing plaintiff in a Title VII proceeding is ordinarily to be awarded attorney's fees by the district court in all but special circumstances, a prevailing defendant is to be awarded such fees only when the court in the exercise of its discretion has found that the plaintiffs action was frivolous, unrea- sonable, or without foundation. Pp. 697-701. (a) There are at least two strong equitable con- siderations favoring an attorney's fee award to a pre- vailing Tide VII plaintiff that are wholly absent in the case of a Title VII defendant, viz. the plaintiff is Congress' chosen instrument to vindicate "a policy that Congress considered of the highest priority," Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed,2d 1263, and when a dis- trict court awards counsel fees to a prevailing plaintiff, it is awarding them against a violator of federal law. Pp. 698-699. *413 b) No statutory provision would have been necessary had an award of attorney's fees to a pre- vailing defendant been [Jager' only on the plaintiffs bad faith in bringing the action, for even under the American common-law rule (which ordinarily does not allow attorney's fees to the prevailing party) such fees can be awarded against a party who has pro- ceeded in bad faith. P. 699. 2. The District Court properly applied the fore- going standards and did not abuse its discretion in concluding that an award to petitioner of attorney's fees was not justified. P. 701, 550 F.2d 949, affirmed, Thomas S. Martin, Washington, D. C., for respond- e nt. William W. Sturges, Charlotte, N. C., for petitioner. Mr. Justice STEWART delivered the opinion of the Court. Section 706(k) of Title VII of the Civil Rights Act of 1964 provides: "In any action or proceeding under this title the court, *414 in its discretion, may allow the prevailing party ... a reasonable attorney's fee• FIJI FN1, Section 706(k) provides in full: "In any action or proceeding under this title the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person." 78 Stat. 261, 42 U.S.C. § 2000e-5(k). The question in this case is under what circum- stances an attorney's fee should be allowed when the defendant is the prevailing party in a Title VII action -a question about which the federal courts have ex- pressed divergent views. Two years after Rosa Helm had filed a Title VII charge of racial discrimination against the petitioner Christiansburg Garment Co. (company), the Equal Employment Opportunity Commission notified her that its conciliation efforts had failed and **697 that she had the right to sue the company in federal court. She did not do so. Almost two years later, in 1972. Congress enacted amendments to Title VII.FN2 Section 14 of these amendments authorized the Commission to sue in its own name to prosecute "charges pending with the Commission" on the effective date of the amendments. Proceeding under this section, the Commission sued the company, alleging that it had engaged in unlawful employment practices in viola- tion of the amended Act. The company moved for summary judgment on the ground, inter alia, that the Rosa Helm charge had not been "pending" before the Commission when the 1972 amendments took effect. The District Court agreed and granted summary CD 2013 Thomson Reuters, No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 98 S.Ct. 694 Page 4 434 U.S. 412, 98 S.Ct. 694, 16 Fair Empl.Prac.Cas. (BNA) 502, 15 Empl. Prac. Dec. P 8041, 54 L.Ed.2d 648 (Cite as: 434 U.S. 412, 98 S.Ct. 694) judgment in favor of the company. 376 F.Supp. 1067 (W.D. Va.).FN3 FN2. Equal Employment Opportunity Act of 1972, Pub.L. 92-261, 86 Stat. 103. FN3. The Commission argued that charges as to which no private suit had been brought as of the effective date of the amendments re- mained "pending" before the Commission so long as the complaint had not been dismissed and the dispute had not been resolved through conciliation. The Commission sup- ported its construction of § 14 with refer- ences to the legislative history of the 1972 amendments. The District Court concluded that when Rosa Helm was notified in 1970 that concil- iation had failed and that she had a right to sue the company, the Commission had no further action legally open to it, and its au- thority over the case terminated on that date. Section 14's reference to "pending" cases was held "to be limited to charges still in the process of negotiation and conciliation" on the effective date of the 1972 amendments. 376 F.Supp., at 1074. The District Court rejected on the merits two additional grounds advanced by the company in support of its motion for summary judg- ment. *415 The company then petitioned for the al- lowance of attorney's fees against the Commission pursuant to § 706(k) of Title VII. Finding that "the Commission's action in bringing the suit cannot be characterized as unreasonable or meritless," the Dis- trict Court concluded that "an award of attorney's fees to petitioner is not justified in this case." FN4 A divided Court of Appeals affirmed, 550 F.2d 949 (CA4), and we granted certiorari to consider an important ques- tion of federal law, 432 U.S. 905, 97 S.Ct. 2948, 53 L.Ed.2d 1077. FN4. The opinion of the District Court dealing with the motion for attorney's fees is reported, at 12 FEP Cases 533. II (1 1 It is the general rule in the United States that in the absence of legislation providing otherwise, liti- gants must pay their own attorney's fees. Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141. Congress has provided only limited exceptions to this rule "under selected statutes granting or protecting various federal rights." Id., at 260, 95 S.Ct. at 1623. Some of these statutes make fee awards mandatory for prevailing plaintiffs; FN5 others make awards permissive but limit them to certain parties, *416 usually prevailing plaintiffs. FN6 But many of the statutes are more flexible, authorizing the award of attorney's fees to either plaintiffs or de- fendants, and entrusting the effectuation of the statu- tory policy to the discretion of the district courts. FN7 Section 706(k) of Title VII of the Civil Rights Act of 1964 falls into this last category, providing as it does that a district court may in its discretion allow an attorney's fee to the prevailing party. FNS. See, e. g., Clayton Act, 38 Stat. 731, 15 U.S.C. § 15; Fair Labor Standards Act of 1938, 52 Stat. 1069, as amended, 29 U.S.C. § 216(b); Packers and Stockyards Act, 42 Stat. 165, 7 U.S.C. § 210 f); Truth in Lending Act, 82 Stat. 157, 15 U.S.C. § 1640(a); and Mer- chant Marine Act, 1936, 49 Stat. 2015, 46 U.S.C. § 1227. FN6. See, e. g., Privacy Act of 1974, 88 Stat. 1897, 5 U.S.C. § 552a(g)(2)(B) (1976 ed.); Fair Housing Act of 1968, 82 Stat. 88, 42 U.S.C. § 3612(c). FN7. See, e. g., Trust Indenture Act of 1939, 53 Stat. 1171, 15 U.S.C. § 77000(e); Securi- ties Exchange Act of 1934, 48 Stat. 889, 897, 15 U.S.C. §§ 78i(e), 78r(a); Federal Water Pollution Control Act, 86 Stat. 889, 33 U.S.C. § 1365(d) (1970 ed., Supp. V); Clean Air Act, 84 Stat. 1706, 42 U.S.C. § 1857h-2(d); Noise Control Act of 1972, 86 Stat. 1244, 42 U.S.C. § 4911(d) (1970 ed., Supp. V). **698 In Newman v. Piggie Park Enterprises, 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263, the Court considered a substantially identical statute au- thorizing the award of attorney's fees under Title II of the Civil Rights Act of 1964.FNs In that case the © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 98 S.Ct. 694 Page 5 434 U.S. 412, 98 S.Ct. 694, I 6 Fair EmpLPrac.Cas. (BNA) 502, 15 Empl. Prac, Dec. P 8041, 54 L.Ed.2d 648 (Cite as: 434 U.S. 412, 98 S.Ct. 694) plaintiffs had prevailed, and the Court of Appeals had held that they should be awarded their attorney's fees "only to the extent that the respondentsdefenses had been advanced 'for purposes of delay and not in good faith.' Id., at 401, 88 S.Ct. at 966. We ruled that this "subjective standard" did not properly effectuate the purposes of the counsel -fee provision of Title II. Re- lying primarily on the intent of Congress to cast a Title II plaintiff in the role of "a 'private attorney general,' vindicating a policy that Congress considered of the highest priority," we held that a prevailing plaintiff under Title II "should ordinarily recover an attorney's fee unless special circumstances would render such an award *417 unjust." Id., at 402, 88 S.Ct. at 966. We noted in passing that if the objective of Congress had been to permit the award of attorney's fees only against defendants who had acted in bad faith, "no new statutory provision would have been necessary," since even the American common-law rule allows the award of attorney's fees in those exceptional circum- stances. Id., at 402, 88 S.Ct. at 966 n. 4.FN9 !EN 8 "In any action commenced pursuant to this subchapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs, and the United States shall be liable for costs the same as a private per- son." 42 U.S.C. § 2000a-3(b). FN9. The propriety under the American common-law rule of awarding attorney's fees against a losing party who has acted in bad faith was expressly reaffirmed in Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 258-259, 95 S.Ct. 1612, 1622. 44 L.Ed.2d 141. [21 In Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362 45 L.Ed.2d 280, the Court made clear that the Piggie Park standard of awarding at- torney's fees to a successful plaintiff is equally appli- cable in an action under Title VII of the Civil Rights Act. 422 U.S., at 415, 95 S.Ct., at 2370. See also Northcross v. Memphis Board of Education, 412 U.S. 427, 428, 93 S.Ct. 2201, 37 L.Ed.2d 48. It can thus be taken as established, as the parties in this case both acknowledge, that under § 706(k) of Title VII a pre- vailing plaintiff ordinarily is to be awarded attorney's fees in all but special circumstances.'iu FNIO. Chastang v. Flvnn & Emrich Co., 541 F.2d 1040, 1045 (CA4) (finding "special circumstances" justifying no award to pre- vailing plaintiff); Carrion v. Yeshiva Univ.. 535 F.2d 722. 727 (CA2); Johnson v. Geor- eia HiRhway Express, Inc., 488 F.2d 714, 716 (CAS); Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 429-430 (CA8). 111 The question in the case before us is what standard should inform a district court's discretion in deciding whether to award attorney's fees to a suc- cessful defendant in a Title VII action. Not surpris- ingly, the parties in addressing the question in their briefs and oral arguments have taken almost diamet- rically opposite positions.' FN11. Briefs by amici have also been filed in support of each party. The company contends that the Piggie Park cri- terion for a successful plaintiff should apply equally as a guide to the *418 award of attorney's fees to a suc- cessful defendant. Its submission, in short, is that every prevailing defendant in a Title VII action should receive an allowance of attorney's fees "unless special circumstances would render such an award unjust." FN 12 The respondent Commission, by contrast, argues that the prevailing defendant should receive an award of attorney's fees only when it is found that the plain- tiffs action was brought in bad faith. We have con- cluded that neither of these positions is correct. FN 12. This was the view taken by Judge Widener, dissenting in the Court of Appeals, 550 F.2d 949, 952 (CA4), At least two other federal courts have expressed the same view. EEOC v. Bailey Co. Inc, 563 F.2d 439 456 (CA6). United States v. Allegheny -Ludlum Industries, Inc., 558 F.2d 742, 744 (CA5), **699 A Relying on what it terms "the plain meaning of the statute." the company argues that the language of § 706(k) admits of only one interpretation: "A prevail- ing defendant is entitled to an award of attorney's fees on the same basis as a prevailing plaintiff," But the permissive and discretionary language of the statute does not even invite, let alone require, such a me- © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 98 S.Ct. 694 Page 6 434 U.S. 412, 98 S.Ct. 694, 16 Fair Empl.Prac.Cas. (BNA) 502, 15 Empl. Prac. Dec. P 8041, 54 L.Ed.2d 648 (Cite as: 434 U.S. 412, 98 S.Ct. 694) chanical construction. The terms of § 706(k) provide no indication whatever of the circumstances under which either a plaintiff or a defendant should be enti- tled to attorney's fees. And a moment's reflection reveals that there are at least two strong equitable considerations counseling an attorney's fee award to a prevailing Title VII plaintiff that are wholly absent in the case of a prevailing Title VII defendant. First, as emphasized so forcefully in Piggie Park, the plaintiff is the chosen instrument of Congress to vindicate "a policy that Congress considered of the highest priority." 390 U.S., at 402, 88 S.Ct. at 966. Second, when a district court awards counsel fees to a prevailing plaintiff, it is awarding them against a vi- olator of federal law. As the Court of Appeals clearly perceived, "these policy considerations which support the award of fees to a *419 prevailing plaintiff are not present in the case of a prevailing defendant." 550 F.2d at 951, A successful defendant seeking counsel fees under § 706(k) must rely on quite different equi- table considerations, Di But if the company's position is untenable, the Commission's argument also misses the mark. It seems clear, in short, that in enacting § 706(k) Con- gress did not intend to permit the award of attorney's fees to a prevailing defendant only in a situation where the plaintiff was motivated by bad faith in bringing the action. As pointed out in Piggie Park, if that had been the intent of Congress, no statutory provision would have been necessary, for it has long been established that even under the American common-law rule at- torney's fees may be awarded against a party who has proceeded in bad faith, 1.N13 FN13. See n.9, supra. Had Congress pro- vided for attorney's fee awards only to suc- cessful plaintiffs, an argument could have been made that the congressional action had pre-empted the common-law rule, and that, therefore, a successful defendant could not recover attorney's fees even against a plain- tiff who had proceeded in bad faith. Cf. Byram Concretanks, Inc. v. Warren Concrete Products Company of New Jersey, 374 F.2d 649, 651 (CA3). But there is no indication whatever that the purpose of Congress in enacting § 706(k) in the form that it did was simply to foreclose such an argument. Furthermore, while it was certainly the policy of Congress that Title VII plaintiffs should vindicate "a policy that Congress considered of the highest prior- ity," Piggie Park, 390 U.S., at 402, 88 S.Ct., at 966, it is equally certain that Congress entrusted the ultimate effectuation of that policy to the adversary judicial process, Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 97 S.Ct. 2447, 53 L.Ed.2d 402. A fair adversary process presupposes both a vigorous prosecution and a vigorous defense. It cannot be lightly assumed that in enacting § 706(k), Congress intended to distort that process by giving the private plaintiff substantial incentives to sue, while foreclosing to the defendant the possibility of recovering his expenses in resisting even a groundless action unless he can show that it was brought in bad faith. *420 B The sparse legislative history of § 706(k) reveals little more than the barest outlines of a proper ac- commodation of the competing considerations we have discussed. The only specific reference to § 706(k) in the legislative debates indicates that the fee provision was included to "make it easier for a plain- tiff of limited means to bring a meritorious suit." r\14 During the Senate floor discussions of the almost identical attorney's**700 fee provision of Title II, however, several Senators explained that its allowance of awards to defendants would serve "to deter the bringing of lawsuits without foundation," FM5 "to discourage frivolous suits," FNI6 and "to diminish the likelihood of unjustified suits being brought." FNI7 If anything can be gleaned from these fragments of leg- islative history, it is that while Congress wanted to clear the way for suits to be brought under the Act, it also wanted to protect defendants from burdensome litigation having no legal or factual basis. The Court of Appeals for the District of Columbia Circuit seems to have drawn the maximum significance from the Sen- ate debates when it concluded: FN14. Remarks of Senator Humphrey, 110 Cong,Rec. 12724 (1964). FN15. Remarks of Senator Lausche, id., at 13668. FN16. Remarks of Senator Pastore, id., at 14214. FNI7. Remarks of Senator Humphrey, id., at C) 2013 Thomson Reuters. No Claim to ()rig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 98 S.Ct. 694 Page 7 434 U.S. 412, 98 S.Ct. 694, 16 Fair Empl.Prac.Cas. (BNA) 502, 15 Empl. Prac. Dec. P 8041, 54 L.Ed.2d 648 (Cite as: 434 U.S. 412, 98 S.Ct. 694) 6534. "[From these debates] two purposes for § 706(k) emerge. First, Congress desired to `make it easier for a plaintiff of limited means to bring a meritorious suit' . ... But second, and equally important, Congress in- tended to `deter the bringing of lawsuits without foundation' by providing that the `prevailing party' -be it plaintiff or defendant -could obtain legal fees." Grubbs v. Butz. 179 U.S.App.D.C. 18, 20, 548 F.2d 973, 975. The first federal appellate court to consider what criteria should govern the award of attorney's fees to a prevailing *421 Title VII defendant was the Court of Appeals for the Third Circuit in United States Steel Corp, v. United States, 519 F.2d 359. There a District Court had denied a fee award to a defendant that had successfully resisted a Commission demand for documents, the court finding that the Commission's action had not been " 'unfounded, meritless, frivolous or vexatiously brought.' " Id.. at 363. The Court of Appeals concluded that the District Court had not abused its discretion in denying the award. Id., at 365. A similar standard was adopted by the Court of Ap- peals for the Second Circuit in Carrion v. Yeshiva University, 535 F.2d 722, In upholding an attorney's fee award to a successful defendant, that court stated that such awards should be permitted "not routinely, not simply because he succeeds, but only where the action brought is found to be unreasonable, frivolous, meritless or vexatious." Id., at 727,E O FN18. At least three other Circuits are in general agreement. See Bolton v. Murray Envelope Corp., 553 F.2d 881, 884 n.2 (CAS); Grubbs v. Butz, 179 U.S.App.D.C. 18, 20-21, 548 F.2d 973. 975-976; Wright v. Stone Container Corp.. 524 F.2d 1058, 1063-1064 (CA8). [41 To the extent that abstract words can deal with concrete cases, we think that the concept embodied in the language adopted by these two Courts of Appeals is correct. We would qualify their words only by pointing out that the term "meritless" is to be under- stood as meaning groundless or without foundation, rather than simply that the plaintiff has ultimately lost his case, and that the term "vexatious" in no way im- plies that the plaintiffs subjective bad faith is a nec- essary prerequisite to a fee award against him. In sum, a district court may in its discretion award attorney's fees to a prevailing defendant in a Title VII case upon a finding that the plaintiffs action was frivolous, un- reasonable, or without foundation, even though not brought in subjective bad faith. In applying these criteria, it is important that a district court resist the understandable temptation to engage in post *422 hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his ac- tion must have been unreasonable or without founda- tion. This kind of hindsight logic could discourage all but the most airtight claims, for seldom can a pro- spective plaintiff be sure of ultimate success. No matter how honest one's belief that he has been the victim of discrimination, no matter how meritorious one's claim may appear at the outset, the course of litigation is rarely predictable. Decisive facts may not emerge until discovery or trial. The law may change or clarify in the midst of litigation. **701 Even when the law or the facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing suit. 151161 That § 706(k) allows fee awards only to prevailing private plaintiffs should assure that this statutory provision will not in itself operate as an incentive to the bringing of claims that have little chance of success.19 To take the further step of as- sessing attomey's fees against plaintiffs simply be- cause they do not finally prevail would substantially add to the risks inhering in most litigation and would undercut the efforts of Congress to promote the vig- orous enforcement of the provisions of Title VII. Hence, a plaintiff should not be assessed his oppo- nent's attorney's fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so. And, needless to say, if a plaintiff is found to have brought or continued such a claim in bad faith, there will be an even stronger basis for charging him with the attorney's fees incurred by the defense. F�° FN 19. See remarks of Senator Miller, 110 Cong.Rec. 14214 (1964), with reference to the parallel attorney's fee provision in Title II. FN20. Initially, the Commission argued that the "costs" assessable against the Govern- ment under § 706(k) did not include attor- 0 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 98 S.Ct. 694 Page 8 434 U.S. 412, 98 S.Ct. 694, 16 Fair Empl.Prac.Cas. (BNA) 502, 15 Empl. Prac. Dec. P 8041, 54 L.Ed.2d 648 (Cite as: 434 U.S. 412, 98 S.Ct. 694) ney's fees. See, e. g., United States Steel Corp. v. United States, 519 F.2d 359, 362 (CA3); Van Hoornissen v. Xerox Corp.. 503 F.2d 1131, 1132-1 133 (CA9). But the Courts of Appeals rejected this position and, during the course of appealing this case, the Com- mission abandoned its contention that it was legally immune to adverse fee awards under § 706(k). 550 F.2d, at 951. It has been urged that fee awards against the Commission should rest on a standard dif- ferent from that governing fee awards against private plaintiffs. One amicus stresses that the Commission, unlike private litigants, needs no inducement to enforce Title VII since it is required by statute to do so. But this distinction between the Commission and private plaintiffs merely explains why Con- gress drafted § 706(k) to preclude the re- covery of attorney's fees by the Commission; it does not support a difference in treatment among private and Government plaintiffs when a prevailing defendant seeks to recover his attorney's fees. Several courts and com- mentators have also deemed significant the Government's greater ability to pay adverse fee awards compared to a private litigant. See, e. g. United States Steel Corp. v. United States, supra, 519 F.2d, at 364 n.24; Heinsz, Attorney's Fees for Prevailing Title VII De- fendants: Toward a Workable Standard, 8 U.Toledo L.Rev. 259, 290 (1977): Comment, Title VII, Civil Rights Act of 1964: Stand- ards for Award of Attorney's Fees to Pre- vailing Defendants, 1976 Wis.L.Rev. 207, 228. We are informed, however, that such awards must be paid from the Commission's litigation budget, so that every attorney's fee assessment against the Commission will in- evitably divert resources from the agency's enforcement of Title VH, See 46 Comp.Gen. 98, 100 (1966); 38 Comp.Gen. 343, 344-345 (1958). The other side of this coin is the fact that many defendants in Title V11 claims are small- and moderate -size employers for whom the expense of defending even a friv- olous claim may become a strong disincen- tive to the exercise of their legal rights. In short, there are equitable considerations on both sides of this question. Yet § 706(k) ex- plicitly provides that "the Commission and the United States shall be liable for costs the same as a private person," Hence, although a district court may consider distinctions be- tween the Commission and private plaintiffs in determining the reasonableness of the Commission's litigation efforts, we find no grounds for applying a different general standard whenever the Commission is the losing plaintiff. *423 IV J71 In denying attorney's fees to the company in this case, the District Court focused on the standards we have discussed. The court found that `the Corn - mission's action in bringing the suit could not be characterized as unreasonable or meritless" because "the basis upon which petitioner prevailed was an *424 issue of first impression requiring judicial reso- lution" and because the "Commission's statutory in- terpretation of § 14 of the 1972 amendments was not frivolous." The court thus exercised its discretion squarely within the permissible bounds of § 706(k). Accordingly, the judgment of the Court of Appeals upholding the decision of the District Court is af- firmed. It is so ordered. Mr. Justice BLACKMUN took no part in the con- sideration or decision of this case. U.S.S.C., 1978. Christiansburg Garment Co. v. Equal Employment Opportunity Commission 434 U.S. 412, 98 S.Ct. 694, 16 Fair Empl.Prac.Cas. (BNA) 502, 15 Empl. Prac. Dec. P 8041, 54 L.Ed.2d 648 END OF DOCUMENT 0 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Wes law. 397 So.2d 352 (Cite as: 397 So.2d 352) P District Court of Appeal of Florida, First District. Ernest ELLISON, Auditor General of the State of Florida, Appellant, v. David L. REID, Appellee. No. VV-27. April8, 1981. Property appraiser sought declaratory judgment concerning Auditor General's determination that ap- praiser's use of puhlic funds to pay for attorney fees incurred by him in successfully defending charges of official misconduct was improper. The Circuit Court, Leon County, Charles E. Miner, Jr., J., entered final summary judgment declaring that such use of public funds was proper, and Auditor General appealed. The District Court of Appeal, First District, Shivers, J., held that use of puhlic funds to pay for attorney fees incurred in defending charges that appraiser engaged in official misconduct while attending Department of Revenue's training program, which was intended to upgrade skills of assessment personnel, was proper. Affirmed. West Headnotes ffl Officers and Public Employees 283 €119 283 Officers and Public Employees 2831E1 Rights, Powers, Duties, and Liabilities 283k1 19 k. Actions by or Against Officers and Employees. Most Cited Cases Generally, public officers are entitled to a defense at expense of public in a lawsuit arising from perfor- mance of officers' official duties and while serving a public purpose. JJ Counties 104 e=;?73 104 Counties 104I11 Officers and Agents Page 1 104k68 Compensation 104k73 k. Reimbursement of Expenses. Most Cited Cases County property appraiser's use of public funds to pay for attorney fees incurred by him in successfully defending charges that he engaged in official mis- conduct while attending Department of Revenue's training program, which was intended to upgrade skills of assessment personnel, was proper. West's F.S.A. $ 195.002, 195.087. *353 John L. Berry and Jackson D. Ingram, Talla- hassee, for appellant. James R. Rich, and J. Elliott Messer and James C. Hauser, of Thompson, Messer, Rhodes, Vickers & Hart. Tallahassee, for appellee. Jim Smith, Atty. Gen., and Frank A. Vickory, Asst. Atty. Gen., amicus curiae. SHIVERS, Judge. Auditor General appeals a final summary' judg- ment holding appellee property appraiser properly expended public funds for payment of attorney fees incurred by him in successfully defending charges of official misconduct before the Florida Ethics Com- mission. We affirm. In January 1975, a former employee of the Palm Beach County Property Appraisers Office filed a complaint against appellee property appraiser with the Florida Ethics Commission, alleging appellee im- properly gave examination papers to his employees while attending a training program sponsored by the Department of Revenue pursuant to Section 195.002, Florida Statutes (1973). Additionally, the complaint alleged appellee plagiarized an appraisal report in order to obtain a professional property appraiser's designation. When the complaint was filed, there were no administrative rules or procedures governing the Ethics Commission, We issued a writ of prohibition against the Commission hearing the complaint in the absence of established rules of procedure. After the 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items D1.3 on 02-14-13 Todd B. Hannon 397 So.2d 352 (Cite as: 397 So.2d 352) Commission promulgated the rules and procedures, it held a hearing on the merits and found no probable cause to believe appellee had used his position to obtain test answers or had plagiarized an appraisal report in order to obtain a professional property ap- praiser's designation. Between June 1975 and March 1977, appellee incurred $16,798.97 in attorney's fees for successfully defending the charges before the Commission. Ap- pellee included this expenditure in his budget for approval by the Department of Revenue pursuant to Section 195.087, Florida Statutes (1975), and, prior to the payment of these fees, the Department of Revenue approved appellee's budget. However, the Auditor General determined the expenditure was improper because it did not serve a public purpose for appellee to spend public funds for private counsel in his suc- cessful defense of charges before the Commission. Appellee then filed a complaint in Circuit Court seeking a declaratory judgment concerning the Audi- tor General's findings. The Circuit Court, by final summary judgment, determined appellee was acting *354 in his official capacity and was engaged in the performance of his duties at the time the alleged misconduct occurred. The court confirmed the Ethics Commission's findings that appellee committed no act of wrongdoing and concluded it was proper for appellee to expend a por- tion of his budget for payment of the attorney's fees. Appellant contends the activities of appellee were outside the scope of his official powers and duties and were therefore personal in nature, and appellee should be required to bear the entire cost of his defense. We disagree. I I1f21 The Circuit Court was correct in entering a summary judgment in favor of appellee. In Markham v. State Department of Revenue, 298 So.2d 210 (Fla, 1st DCA 1974), this court stated the general principle that public officers are "entitled to a defense at the expense of the public in a law suit arising from the performance of the officer's official duties and while serving a public purpose." At the time the alleged misconduct occurred, appellee was attending a train- ing program sponsored by the Department of Reve- nue. Section 195.002, Florida Statutes (1973), refer- ring to the Department of Revenue, states that "the department shall conduct schools to upgrade assess - Page 2 ment skills in both state and local assessment per- sonnel." These continuing education schools are sponsored by the International Association of As- sessing Officers in cooperation with the Florida De- partment of Revenue and serve a valid public purpose. The courses are intended to encourage property ap- praisers and their staffs to become better skilled in their official responsibilities. There is no doubt a valuable public purpose is served in protecting the effective operation and maintenance of the admin- istration of a public office. If a public officer is charged with misconduct while performing his official duties and while serving a public purpose, the public has a primary interest in such a controversy and should pay the reasonable and necessary legal fees incurred by the public officer in successfully defending against unfounded allegations of official misconduct. There- fore, we affirm the final summary judgment holding appellee properly expended public funds for the payment of attorney's fees incurred by him in suc- cessfully defending charges of official misconduct before the Florida Ethics Commission. AFFIRMED. McCORD and JOANOS, JJ., concur. Fla.App., 1981. Ellison v, Reid 397 So.2d 352 END OF DOCUMENT 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items 01.3 on 02-14-13 Todd B. Hannon Westlaw. 423 So.2d 974 (Cite as: 423 So.2d 974) District Court of Appeal of Florida, Fourth District. John LO ELO, Jr., Mayor of the City of Sunrise, Appellant, v. CITY OF SUNRISE, Florida, a municipal corpora- tion, and Dan Pearl, William "Bill" Colon, Lawrence "Larry" Hoffman, Steven W. Effman, and John Montgomery, as members of and constituting the City Council of the City of Sunrise, Florida, Appellees. No. 81-2249. Dec. 8, 1982. Rehearing Denied Jan. 12, 1983. The Circuit Court, Broward County, Eugene S. Garrett, J., issued declaratory judgment which deter- mined that city had no duty to pay attorney fees in- curred by mayor in his successful defense against felony indictment, and mayor appealed. The District Court of Appeal, Hersey, J., held that: (1) under city charter, mayor had authority to release arrestee on his own recognizance or otherwise, and (2) since mayor was found innocent of threatening officer, leaving only allegation that he obtained arrestee's release by virtue of his power as mayor. mayor was entitled to have his attorney fees paid by city, and city counsel could not refuse to do so simply because they disap- proved of mayor's actions. Reversed and remanded. West Hcadnotes Llj Officers and Public Employees 283 C=7119 283 Officers and Public Employees 283111 Rights, Powers, Duties, and Liabilities 283k1 19 k. Actions by or against officers and employees. Most Cited Cases Public officer is entitled to defense at expense of public in defending suits for misconduct charges while Page 1 performing his public duties and while serving public purpose. Ill Municipal Corporations 268 C--1226 268 Municipal Corporations 268V11 Contracts in General 268k226 k. Capacity to contract in general. Most Cited Cases Public Contracts 316H €='105 3I6H Public Contracts 316H1 In General 31 6Hk105 k. Authority and capacity of par- ticular governmental bodies to contract. Most Cited Cases Municipal corporation has right and power to re- tain and pay private counsel to protect interests of municipality and invasion of those interests may take form of attack on one or more public officers. 1_3_1 Officers and Public Employees 283 €='119 283 Officers and Public Employees 283111 Rights, Powers, Duties, and Liabilities 283k119 k. Actions by or against officers and employees. Most Cited Cases Rule that public officers are entitled to defense at public expense in law suit arising from performance of officer's official duty, and rationale behind it, apply as well to prepayment as postpayment. j_41 Municipal Corporations 268 €163 268 Municipal Corporations 268V Officers, Agents, and Employees 268V(A) Municipal Officers in General 268k I 61 Compensation 268k I 63 k. Reimbursement of expend- itures. Most Cited Cases Municipal corporation or other public body is obligated to furnish or pay fees for counsel to defend 0 20 13 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 423 So.2d 974 (Cite as: 423 So.2d 974) public official subjected to attack either in civil or criminal proceeding where conduct complained of arises out of or in connection with performance of his official duties; such obligation arises independent of statute, ordinance, or charter, and is not subject to discretion of keepers of city coffers. f 5] Municipal Corporations 268 6C168 268 Municipal Corporations 268V Officers, Agents, and Employees 268V(A) Municipal Officers in General 268k166 Authority and Powers 268k168 k. Mayor or other chief execu- tive. Most Cited Cases (Formerly 268k46) Under city charter granting mayor police power to see that charter, ordinances, law, and rules of city were complied with, and to see that peace, good order, safety, and good morals were preserved within city, mayor possessed authority to release arrestee on his own recognizance or otherwise. j. Municipal Corporations 268163 268 Municipal Corporations 268V Officers, Agents, and Employees 268V(A) Municipal Officers in General 268k161 Compensation 268k163 k. Reimbursement of expend- itures. Most Cited Cases Municipal Corporations 268 €170 268 Municipal Corporations 268V Officers, Agents, and Employees 268V(A) Municipal Officers in General 268k170 k. Duties and liabilities. Most Cited Cases Mayor who was found innocent of threatening officer. leaving only allegation that he obtained ar- restee's release by virtue of his power as mayor granted in city charter, acted in his officialcapacity in obtaining such release and such actions were author- ized by public body; and thus, city was obligated to pay mayor's attorney fees for defending against charges, and city counsel could not abandon his legal defense simply because they disapproved of his ac- Page 2 tions. *975 David R. Mackenzie, Lauderhill, for appellant. Philip S. Shailer of Shailer, Purdy & lolly, Fort Lauderdale, for appellees Dan Pearl, William "Bill" Colon, Lawrence "Larry" Hoffman, Steven W. Eff- man and John Montgomery, as members of and con- stituting the City Council of the City of Sunrise, Fla. HERSEY, Judge. The mayor of the City of Sunrise, Florida, appeals from a declaratory judgment which determined that the city had no duty to pay attorneys' fees incurred by the mayor in his successful defense against a felony indictment. The indictment charged the mayor with corrup- tion by threat against a public servant. Appellant's brief succinctly states the circumstances which led to the indictment. Appellant testified that he happened to be at the Sunrise Musical Theatre when he observed police officers of the City of Sunrise arresting a young man the Mayor recognized and knew to be a resident of the City of Sunrise. Appellant then testified that he spoke to the lieu- tenant in charge of the detail and asked if the boy could be released in his father's custody without having to post a FIVE THOUSAND ($5,000.00) DOLLAR bond. The indictment alleges that at this point threats were made by Appellant to secure the release of the young man. The Appellant went on to testify that he then went to the police station and called the City Attorney of the City of Sunrise to ask if he (Appellant) had the authority to release him on his own recognizance through his father. Based upon his conversation with the City At- torney, the Appellant, as Mayor of the City, released the young man on his own recognizance. Subsequent to these events the Appellant was in- dicted. 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items Di.3 on 02-14-13 Todd B. Hannon 423 So.2d 974 (Cite as: 423 So.2d 974) The Appellant testified that pursuant to the Charter of the City of Sunrise that the Chief of Po- lice reports directly to him. Appellant, after indictment, sought to have the City Attorney of the City of Sunrise represent him but this was not possible as he had been suspended by the Governor after the indictment was returned. As a result, Appellant had to secure private coun- sel.... [T]he City Council of the City of Sunrise re- fused to pay the bill for attorneys services rendered. Concerning this incident, the indictment set out that appellant did, among other things: 1. Inquire of Lt. Ernest Howey as to whether any "courtesy" could be extended to Michael Bradshaw; 2. Request that Michael Bradshaw be released from custody and the charges be voided or words to the same tenor and effect; 3. Ask if Lt. Ernest Howey would take care of this or would it be necessary to go to someone higher; 4. After being advised by Lt. Ernest Howey that he (Howey) was not the arresting officer but that he would speak with Officer Roberts and support Roberts in any decision he made, did remind Lt. Howey that he, (John Lomelo, Jr.) has a long memory; and 5. That he, (John Lomelo, Jr.) could take care of his (Lt. Howey's) family. Appellant was acquitted on these charges. [1.] The parties agree that no state statute, city ordinance or provision of the city charter authorizes or requires reimbursement for attorneys' fees under these circumstances. However, appellees, in their brief, concede that: *976 [A] public officer is entitled to a defense at the expense of the public in defending suits or mis- conduct charges while performing his public duties and while serving a public purpose. Appellees take no issue with said principle; .... Page 3 [21 We think this accurately reflects the present status of the law. It is settled that a municipal corpo- ration has the right and power to retain and pay private counsel to protect the interests of the municipality and that invasion of those interests may take the form of an attack on one or more public officers. City of North Miami Beach v. Estes, 214 So.2d 644 (Fla. 3d DCA 1968), cert. discharged, 227 So.2d 33 (F1a,1969). In Markham v. State Department of Revenue 298 So.2d 210, 211 (Fla. 1st DCA 1974), the court explicitly states: It is a fundamental concept of the law in Florida and elsewhere that public funds may not be expended for other than public purposes. Public officers are, of course, entitled to a defense at the expense of the public in a law suit arising from the performance of the officer's official duties and while serving a pub- lic purpose. Duplig v. City of South Daytona, Fla.App. (1st) 1967, 195 So.2d 581. [31 It is neither remarkable nor legally significant that this rule evolved from cases in which the issue is posed in terms of the propriety, after the fact, of mu- nicipalities paying legal fees incurred by public offi- cials. The rule and its rationale apply as well pre -payment as post -payment. Thus Shuler v. School Bd. of Liberty County, 366 So.2d 1184 (Fla. 1st DCA 1978), involves as does our case the refusal of the body politic (a school board) to employ and pay for an attorney to represent a public official (the superin- tendent). Shuler exemplifies an application of the rule discussed in these earlier cases and imposes a "duty to pay." A recent pronouncement of the Third District Court of Appeal on this issue in City of Hialeah v. Bennett, 376 So.2d 483 (Fla. 3d DCA 19791, is worth repeating here: Affirmed on the authority of the rule stated as follows in Cahn v. Town of Huntington, 29 N.Y.2d 451, 328 N.Y.S.2d 672, 676, 278 N.E.2d 908, 910 (1972): [A] municipal board or officer possesses im- plied authority to employ counsel in the good faith prosecution or defense of an action under- taken in the public interest, and in conjunction with its or his official duties where the municipal 2013 Thomson Reuters. No Claim to Orig. US Gov. Works, Submitted into the public record in connection with items Di.3 on 02-14-13 Todd B. Hannon 423 So.2d 974 (Cite as: 423 So.2d 974) attorney- refused to act or was incapable of, or was disqualified from, acting. Accord, WaiRand v. City of Nampa, 64 Idaho 432, 133 P.2d 738 (1943); Braslow v. Barnett, 74 Misc,2d 26, 343 N.Y.S.2d 819 (Dist.Ct.1973); Krahmer v. McClafferty, 282 A.2d 631 (Su- per.Ct.De1.1971); see Citv of North Miami Beach v. Estes, 214 So.2d 644 (Fla. 3d DCA 1968), cert. disch., 227 So.2d 33 (Fla.1969); cf. Shuler v. School Board of Liberty County, 366 So.2d 1184 (Fla. 1st DCA 1978), cert. dismissed, 368 So.2d 1373 (Fla.1979). Subsequently the First District Court of Appeal applied the principle in similar fashion. Ellison v. Reid, 397 So.2d 352 (Fla. 1st DCA 1981), 141 These cases establish that a municipal corpo- ration or other public body is obligated to furnish or pay fees for counsel to defend a public official sub- jected to attack either in civil or criminal proceedings where the conduct complained of arises out of or in connection with the performance of his official duties. This obligation arises independent of statute, ordi- nance or charter. It is not subject to the discretion of the keepers of the city coffers. f51161The revised home rule charter of the City of Sunrise provides, in pertinent part: Section 4.04 Mayor: Powers and Duties (I) The Mayor shall serve in such capacity on a full-time basis. (2) The Mayor shall serve as Chief Executive Officer of the city and shall see that the provisions of the charter, ordinances, laws and rules of the city are complied with and enforced and may use the police power of the city for such purposes and shall see that peace, good *977 order, safety and good morals are preserved within the city. Section 4.04 Charter Officers; City Clerk, Legal Officer, Chief of Police (4) Chief of Police. The Chief of Police shall be the head of the Police Department and shall be re- sponsible to the Mayor, and shall be responsible for Page 4 the prevention and control of crime and safety and security of the city and its citizens. John Lomelo, Jr., as a private citizen, had no right or authority to interfere with a lawful arrest in pro- gress. In his capacity as mayor, however, he possessed authority to release an arrestee on his own recogni- zance or otherwise. Thus it was as mayor that he sought and effectuated the arrestee's release. The in- dictment alleged that in so doing he violated a criminal statute. Obviously he had no right to threaten the of- ficer or the officer's family. Such conduct would con- stitute a gross abuse of his power and office. However, he was found innocent of that charge. The remaining facts indicate that he obtained an arrestee's release by virtue of his power as mayor granted in the city char- ter. Thus he clearly acted in his official capacity and such actions were authorized by the public body. If the city council was or is displeased with his activities other remedies are available. They may not abandon his legal defense simply because they disapprove of his actions. The trial court found no abuse of discretion in the refusal of the City Council of the City of Sunrise to pay appellant's attorneys' fees. Since we conclude that appellees have no such discretion under these cir- cumstances, we reverse and remand for the entry of a final judgment requiring payment by the City of Sun- rise of the legal fees in issue. REVERSED AND REMANDED WITH DI- RECTIONS. BERANEK and DELL, JJ., concur. F1a.App. 4 Dist.,1982. Lomelo v. City of Sunrise 423 So.2d 974 END OF DOCUMENT Submitted into the public record in connection with items 0I.3 on 02-14-13 Todd B. Hannon © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Westlaw. 48 So.3d 811, 35 Fla. L. Weekly S675 (Cite as: 48 So.3d 811) Supreme Court of Florida. MICCOSUKEE TRIBE OF INDIANS OF FLO DA, etc., Appellant, v. SOUTH FLORIDA WATER MANAGEMENT DISTRICT, etc., et al., Appellees. New Hope Sugar Company, et al., Appellants, v. South Florida Water Management District, etc., et al., Appellees. Nos. SCO9-1817. SC09-1818. Nov. 18, 2010. Background: Water management district sought validation of proposed issuance of certificates of par- ticipation (COPs) in order to finance land purchase. The Circuit Court, Palm Beach County, Donald W. Hafele, validated COPs. Defendant sugar company and intervenor Indian tribe appealed. Holdings: The Supreme Court, Quince, J., held that: (I) purchase of property by district served public purposes, thus meeting requirements of state consti- tutional provision prohibiting use of state's taxing power or credit to aid private entity or person: (2) issuance of COPs by district was not a pledge of district's credit and thus only a public purpose rather than a paramount public purpose was required to be shown in order for issuance to be constitutional: (3) local bond referendum was not required under state constitution for issuance of COPs: but (4) district could not constitutionally include under master lease any lands that were financed through pledge of district's ad valorem taxing power; and (5) no public purpose was shown for option to pur- chase further land, and thus COPs could not be issued to cover expense of option. Affirmed in part and reversed in part. Lewis, J., concurred and filed opinion. West Headnotes Page 1 U Municipal Corporations 268917(2) 268 Municipal Corporations 268XII1 Fiscal Matters 268XIII(C) Bonds and Other Securities, and Sinking Funds 268k917 Proceedings Preliminary to Issue of Bonds 268k917(2) k. Determination of validity. Most Cited Cases Judicial inquiry in a bond validation proceeding, both at the trial court and the Supreme Court, is lim- ited to determining: (1) whether a public body has the authority to issue the subject bonds; (2) whether the purpose of the obligation is legal; and (3) whether the authorization of the obligation complies with the re- quirements of law. 1 1 Appeal and Error 30 €893(1) 30 Appeal and Error 30XVI Review 30XVI(F) Trial De Novo 30k892 Trial De Novo 30k893 Cases Triable in Appellate Court 30k893(1) k. In general. Most Cited Cases Appeal and Error 30 1010 30 Appeal and Error 3OXVI Review 30XVI(I) Questions of Fact, Verdicts, and Findings 30XVI(I)3 Findings of Court 30k1010 Sufficiency of Evidence in Support 30k 10 10.1 In General 30k1010.1(4) k. Competent or credible evidence. Most Cited Cases Appeal and Error 30 €1010.1(6) 30 Appeal and Error 30XVI Review 2013 Thomson Reuters, No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items Dt.3 on 02-14-13 Todd B. Hannon 48 So.3d 81_ 1, 35 Fla. L. Weekly S675 (Cite as: 48 So.3d 811) 30XVI(1) Questions of Fact, Verdicts, and Findings 30XVI(1)3 Findings of Court 30k1010 Sufficiency of Evidence in Support 30k10 10.1 In General 30k1010.1(6) k. Substantial evi- dence. Most Cited Cases Supreme Court reviews the trial court's findings of fact for substantial competent evidence and its conclusions of law de novo. 0_1 Municipal Corporations 2684C917(2) 268 Municipal Corporations 268X1I1 Fiscal Matters 268X1H(C) Bonds and Other Securities. and Sinking Funds 268k917 Proceedings Preliminary to Issue of Bonds 268k91_7(2) k. Determination of validity. Most Cited Cases Final judgment of validation of certificates of participation (COPs) comes to the Supreme Court clothed with a presumption of correctness. Ell Appeal and Error 30 €='901 30 Appeal and Error 30XVI Review 30XVI(G) Presumptions 30k901 k. Burden of showing error. Most Cited Cases Appellants have the burden of demonstrating that the record and evidence fail to support the lower court's conclusions, 1_5] Water Law 405 C=1027 405 Water Law 40511 Comprehensive Water Resource Planning and Management in General 40511(A) In General 405k1026 State or District Water Plans and Management 405k 1 027 k. In general. Most Cited Cases Page 2 Water Law 405 e1.035 405 Water Law 40511 Comprehensive Water Resource Planning and Management in General 40511(B) Districts, Agencies, and Other Ad- ministrative Authorities 405k1035 k. Powers, proceedings and re- view. Most Cited Cases Factual findings of trial court in order validating certificates of participation (COPs) bond issue to allow water management district to purchase land were not incomplete simply because trial court failed to consider economic feasibility of project or recog- nize that project proceeds would not be used to finance infrastructure projects on land; economic feasibility of plan was beyond scope of judicial review in bond validation proceeding. 16_1 Municipal Corporations 268 e917(2) 268 Municipal Corporations 268X111 Fiscal Matters 268X111(C) Bonds and Other Securities, and Sinking Funds 268k917 Proceedings Preliminary to Issue of Bonds 268k917(2) k. Determination of validity. Most Cited Cases The function of a validation proceeding is merely to settle the basic validity of the securities and the power of the issuing agency to act in the premises; its objective is to put in repose any question of law or fact affecting the validity of the bonds. West's F.S.A, 75.01 et seq. Ili Water Law 405 (C---'1035 405 Water Law 40511 Comprehensive Water Resource Planning and Management in General 40511(B) Districts, Agencies, and Other Ad- ministrative Authorities 405k1035 k. Powers, proceedings and re- view. Most Cited Cases Water management district has authority to ac- 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items 0I.3 on 02-14-13 Todd B. Hannon 48 So.3d 811, 35 Fla. L. Weekly S675 (Cite as: 48 So.3d 811) quire lands to further the objective of conserving and protecting water and water -related resources. West's F.S.A. §§ 373.019(261, 373.139(1), 373.584(1, 2), (4)(b). U Water Law 405 €=1035 405 Water Law 405I1 Comprehensive Water Resource Planning and Management in General 4051I(B) Districts, Agencies, and Other Ad- ministrative Authorities 405k1035 k. Powers, proceedings and re- view. Most Cited Cases Evidence supported finding of public purpose in issuance of certificates of participation (COPs) to allow water management district to purchase land, where district identified the 73,000 acres to be pur- chased, who land would be leased to, what water storage and treatment projects the land would even- tually house, and specific various projects and uses for each parcel of the 73,000 acres, and the court heard testimony from numerous expert witnesses, consid- ered numerous evidentiary materials, and clarified testimony of witnesses. West's F.S.A. § 373.584(2), (4)(b). l� States 360 € 119 360 States 360IV Fiscal Management, Public Debt, and Se- curities 360k1 19 k. Limitation of use of funds or credit. Most Cited Cases Water Law 405 €1029 405 Water Law 405II Comprehensive Water Resource Planning and Management in General 40511(A) In General 405k1026 State or District Water Plans and Management 405kI029 k. Goals and objectives. Most Cited Cases Water Law 405 € 1035 405 Water Law Page 3 40511 Comprehensive Water Resource Planning and Management in General 405II(B) Districts, Agencies, and Other Ad- ministrative Authorities 405kI035 k. Powers, proceedings and re- view. Most Cited Cases Purchase of property by water management dis- trict served public purposes of furthering Everglades restoration and management of water resources, thus meeting requirements of state constitutional provision prohibiting using state's taxing power or credit to aid a private entity or person in action challenging issuance of certificates of participation (COPs) to fund district's purchase of land; district would retain title to lands acquired, and land would be leased back to seller for agricultural operations in order to generate revenues and maintain land until district could construct infra- structure projects required for water storage and treatment for Everglades restoration. West's F.S.A. Const. Art. 7, § 10. J101 States 360119 360 States 360IV Fiscal Management, Public Debt, and Se- curities 360k119 k. Limitation of use of funds or credit. Most Cited Cases Basic test for determining whether an expenditure of public funds violates state constitutional provision prohibiting using state's taxing power or credit to aid a private entity or person is whether such expenditure is made to accomplish a public purpose. West's F.S.A. Const. Art. 7 § 10, 1111 States 360 C119 360 States 3601V Fiscal Management, Public Debt, and Se- curities 360k119 k. Limitation of use of funds or credit. Most Cited Cases Water Law 405 €1035 405 Water Law 4051I Comprehensive Water Resource Planning and Management in General 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items D1.3 on 02-14-13 Todd B. Hannon 48 So.3d 811, 35 Fla. L. Weekly S675 (Cite as: 48 So.3d 811) 4051I(B) Districts, Agencies, and Other Ad- ministrative Authorities 405k1035 k. Powers, proceedings and re- view. Most Cited Cases If a water management district has used either its taxing power or pledge of credit to support issuance of bonds, the purpose of the obligation must serve a paramount public purpose and any benefits to a private party must be incidental, under state constitutional provision prohibiting using state's taxing power or credit to aid a private entity; if the district has not exercised its taxing power or pledged its credit to support the bond obligation, the obligation is valid if it serves a public purpose. West's F.S.A. Const. Art. 7, § 10. 1121 States 360 C—)119 360 States 360IV Fiscal Management, Public Debt, and Se- curities 360k119 k. Limitation of use of funds or credit. Most Cited Cases Incidental private benefit from a public revenue bond issue is not sufficient to negate the public char- acter of a project for purposes of state constitutional provision prohibiting using state's taxing power or credit to aid a private entity or person. West's F.S.A. Const. Art. 7. § 10. 1131 States 360 C=119 360 States 3601V Fiscal Management, Public Debt, and Se- curities 360k1 19 k. Limitation of use of funds or credit. Most Cited Cases As used in state constitutional provision prohib- iting using state's taxing power or credit to aid a pri- vate entity or person, -credit" means the imposition of some new financial liability upon the State or a polit- ical subdivision which in effect results in the creation of a State or political subdivision debt for the benefit of private enterprises. West's F.S.A. Const. Art. 7, § 10. J14IStates 360 €119 Page 4 360 States 360IV Fiscal Management, Public Debt, and Se- curities 360k119 k. Limitation of use of funds or credit, Most Cited Cases Water Law 405 C=1035 405 Water Law 40511 Comprehensive Water Resource Planning arid Management in General 40511(B) Districts, Agencies, and Other Ad- ministrative Authorities 405k1035 k. Powers, proceedings and re- view. Most Cited Cases Issuance of certificates of participation (COPs) by water management district to finance purchase of land was not a pledge of the district's credit, and thus only a public purpose, rather than a paramount public pur- pose, was required to be shown in order for issuance to be constitutional under state constitutional provision prohibiting using state's taxing power or credit to aid a private entity or person; there was no direct or indirect undertaking by the public body to pay the obligation from public funds and no public property was placed in jeopardy by a default of third party. West's F.S.A. Const. Art. 7, § 10. J15j States 360 €119 360 States 3601V Fiscal Management, Public Debt, and Se- curities 360k119 k. Limitation of use of funds or credit. Most Cited Cases Under state constitutional provision prohibiting using state's taxing power or credit to aid a private entity or person, it is immaterial that the primary beneficiary of a project be a private party, if the public interest, even though indirect, is present and suffi- ciently strong. West's F.S,A. Const. Art. 7, § 10. J161 Municipal Corporations 268 e861 268 Municipal Corporations 268X111 Fiscal Matters 268XIII(A) Power to Incur Indebtedness and © 20 I 3 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 48 So.3d 811, 35 Fla. L. Weekly S675 (Cite as: 48 So.3d 811) Expenditures 268k86 k. Municipal purposes. Most Cited Cases Public ownership of a project to be funded by bond revenues is a significant factor in a finding of public purpose. West's F.S.A. Const. Art. 7, § 10. al7 Water Law 405 `'1035 405 Water Law 405II Comprehensive Water Resource Planning and Management in General 405II(B) Districts, Agencies, and Other Ad- ministrative Authorities 405k1035 k. Powers, proceedings and re- view. Most Cited Cases State constitution's local bond referendum re- quirement did not apply to issuance of certificates of participation (COPs) to finance water management district's purchase of land which would be leased back to seller, where district did not pledge its ad valorem taxing powers to pay any sum under the lease agree- ment or any of the leases, could not be compelled to levy any ad valorem tax to pay the lease payments, and could not be compelled to pay any lease payments beyond one year, basic lease payments were payable only from funds appropriated by district board and were not payable from any source of taxation, and board was free to terminate the lease annually without further obligation and the certificate holders were limited to lease remedies. West's F.S.A. Const. Art. 7, § 12. Lai Municipal Corporations 268 C='918(1) 268 Municipal Corporations 268XIII Fiscal Matters 268XIII(C) Bonds and Other Securities, and Sinking Funds 268k918 Submission of Question of Issue of Bonds to Popular Vote 268k918(1) k. In general. Most Cited Cases A local bond referendum is not required by state constitution when there is no direct pledge of the ad valorem taxing power; although contributions may come from ad valorem tax revenues, what is critical to Page 5 the constitutionality of the bonds is that, after the sale of the bonds, a bondholder would have no right, if funds were insufficient to meet the bond obligations to compel by judicial action the levy of ad valorem tax- ation. West's F.S.A. Const. Art. 7, § 12. fill Municipal Corporations 268 €--'918(1) 268 Municipal Corporations 268XIII Fiscal Matters 268XIII(C) Bonds and Other Securities, and Sinking Funds 268k918 Submission of Question of Issue of Bonds to Popular Vote 268k918(1) k. In general. Most Cited Cases Where a governing body is not obliged and can- not be compelled to levy any ad valorem taxes if funds are insufficient to meet bond obligations, then the obligation is not payable from ad valorem taxation for purposes of state constitution, and referendum ap- proval is not required. West's F.S.A. Const. Art. 7, § 12. f� Water Law 405 •--'1035 405 Water Law 40511 Comprehensive Water Resource Planning and Management in General 405II(B) Districts, Agencies, and Other Ad- ministrative Authorities 405k1035 k. Powers, proceedings and re- view. Most Cited Cases Water management district could not constitu- tionally include under master lease, in certificates of participation (COPs)-financed transaction to purchase land which would then be leased back to seller, any lands that were financed through a pledge of district's ad valorem taxing power, where no local bond refer- endum had been held for issuance of COPs. West's F.S.A. Const. Art. 7, § 12. f� Water Law 405 1035 405 Water Law 405II Comprehensive Water Resource Planning and Management in General 405II(B) Districts, Agencies, and Other Ad- 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items D1.3 on 02-14-13 Todd B. Hannon 48 So.3d 811, 35 Fla. L. Weekly S675 (Cite as: 48 So.3d 811) ministrative Authorities 405k1035 k. Powers, proceedings and re- view. Most Cited Cases Legislative approval was not required for issu- ance of certificates of participation (COPs) to finance water management district's purchase of land; water management districts are not state agencies for pur- poses of state constitutional provision requiring leg- islative approval for revenue bonds issued by state or its agencies. West's F.S.A. Const. Art. 7, § 11. J221 Water Law 405 le=1031 405 Water Law 40511 Comprehensive Water Resource Planning and Management in General 4051I(B) Districts, Agencies, and Other Ad- ministrative Authorities 405k1031 k. Nature and purpose. Most Cited Cases Water management districts have an amorphous nature in state law, being deemed state agencies or arms of the state for some purposes, but not for other purposes. 12,11 Water Law 405 C=.1035 405 Water Law 40511 Comprehensive Water Resource Planning and Management in General 40511(B) Districts, Agencies. and Other Ad- ministrative Authorities 405k1035 k. Powers, proceedings and re- view. Most Cited Cases Water management district could establish non- profit leasing corporation to facilitate a certificates of participation (COPs) transaction to finance purchase of land; district had broad statutory grant of authority to do all things necessary and desirable in connection with the issuance of revenue bonds. West's F.S.A. 373.584(2). all Water Law 405 €=1035 405 Water Law 40511 Comprehensive Water Resource Planning and Management in General Page 6 40511(B) Districts, Agencies, and Other Ad- ministrative Authorities 405k1035 k. Powers, proceedings and re- view. Most Cited Cases Competent, substantial evidence supported find- ing that purchase agreement signed by water man- agement district and private company included $50 million cost for option to purchase additional land in transaction financed by certificates of participation (COPs), triggering need for analysis of public purpose of option, where counsel for both parties referred to $50 million to be spent on option, trial testimony of several district witnesses suggested that $50 million was being paid for option, and district's director of land acquisitions testified that the $50 million was part of the acquisition price. J251 Water Law 405 C=1035 405 Water Law 40511 Comprehensive Water Resource Planning and Management in General 40511(B) Districts, Agencies, and Other Ad- ministrative Authorities 405k1035 k. Powers, proceedings and re- view. Most Cited Cases No public purpose was shown for option to pur- chase further land, as included in purchase agreement between water management district arid company in transaction financed by certificates of participation (COPs), and thus COPs could not be issued to cover expense of option, where no public purpose was proven as to land subject to option. West's F.S.A. § 373.584(2) (4)(b). J261 Water Law 405 0=1035 405 Water Law 40511 Comprehensive Water Resource Planning and Management in General 4051I(B) Districts, Agencies, and Other Ad- ministrative Authorities 405k1035 k. Powers, proceedings and re- view. Most Cited Cases Water management district has authority to con- vey land to a governmental entity. West's F.S.A. §§ 373.056(4), 373.089(1). © 2013 Thomson Reuters, No Claim to Orig. US Gov, Works. Submitted into the public record in connection with items D1.3 on 02-14-13 Todd B. Hannon 48 So.3d 811, 35 Fla. L. Weekly S675 (Cite as: 48 So.3d 811) IL17 Water Law 405 €1035 405 Water Law 40511 Comprehensive Water Resource Planning and Management in General 4051I(B) Districts, Agencies, and Other Ad- ministrative Authorities 405k I 035 k. Powers, proceedings and re- view. Most Cited Cases Water management districts may acquire more land than is ultimately required for a project. West's F.S.A. § 373.089(1). *815 Sonia Escobio O'Donnell, James Edwin Kirtlev, and Clifton R. Gruhn of Jordon Burt, LLP, Miami, Florida; Joseph P. Klock, Jr., Gabriel E. Nieto and Juan Carlos Antorcha of Rasco, Klock, Renninger, Perez, Vigil, and Nieto, Coral Gables, FL, for Appel- lants. Randall W. Hanna, Christine E. Lamia, Frederick J. Springer, Jason M. Breth, and Jolinda L. Herring of Bryant, Miller, Olive, PA., Tallahassee, FL, and Sheryl G. Wood. General Counsel, and Frank S. Bartolone, South FloridaWater Management District, West Palm Beach, FL, for Appellees. E. Thom Rumberger and Noah D. Valenstein of Rumberger, Kirk and Caldwell, Tallahassee, FL, on behalf of Florida Audubon Society, Inc. and National Audubon Society dlb/a Audubon of Florida and Na- thaniel P. Reed: Michael F. McAuliffe, State Attor- ney, and Maureen Hackett Ackerman, Assistant State Attorney, Fifteenth Judicial Circuit, West Palm Beach, FL, as Intervenors. Robert L. Nabors of Nabors, Giblin and Nickerson, P.A., Tallahassee, FL, Major B. Harding of Ausley and McNullen, P.A, Tallahassee, FL, and Joy Causseaux Frank, Florida Association of District School Superintendents, Tallahassee, FL, on behalf of Florida Association of District School Superinten- dents, As Amici Curiae. QUINCE, J. This case is before the Court on appeal from a circuit court judgment validating a proposed bond issue. We have jurisdiction. See art. V , § 3(b)(2), Fla. Page 7 Const. For the reasons expressed below, we affirm in part and reverse in part the circuit court's judgment. FACTUAL AND PROCEDURAL HISTORY In October 2008, the South Florida Water Man- agement District (the District), filed a complaint in the Fifteenth Judicial Circuit seeking validation of certif- icates of participation (COPs), pursuant to Chapter 75 of the Florida Statutes, in order to purchase land owned by the United States Sugar Corporation for the purpose of Everglades restoration. The court issued a notice and order to show cause and scheduled a hearing for December 12, 2008. After the District filed a supplemental complaint, the trial court issued an amended notice and order to show cause, which re- tained the December 12 hearing date. The state at- torneys for each of the judicial circuits within the District's jurisdictional boundaries (Ninth, Tenth, Eleventh, Fifteenth, Sixteenth, Seventeenth, Nine- teenth, and Twentieth Circuits) responded to the complaint on various dates. On December 11, 2008, the New Hope Sugar Company and Okeelanta Cor- poration (hereinafter collectively referred to as New Hope) served an answer and a memorandum in oppo- sition to the complaint. The parties appeared before the court on December 12 and the court granted the District's motion to continue the hearing. The court subsequently entered a second amended notice and order to show cause, rescheduling the bond validation proceeding for February 6, 2009, In January 2009, several other parties appeared in the cause. On January 9, 2009, United States Sugar Corporation (U.S. Sugar) served a notice of appear- ance and motion to intervene as a party defend- ant.*816 On January 12, 2009, Dexter Lehtinen, al- ready a defendant in his individual capacity, served a notice of appearance and answer on behalf of the Miccosukee Tribe of Indians of Florida (the Tribe). Other individuals and the Concerned Citizens of Glades also filed notices of appearance and answers to the complaint. The National Audubon Society and Florida Audubon Society served a notice of appear- ance and a notice of intervention. Accelerated dis- covery proceedings took place between December 2008 and February 2009. Various motions and mem- oranda of law were filed by the parties in February 2009. The validation hearing was held over a number of days in February, March, July, and August of 2009. © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items 0I.3 on 02-14-13 Todd B. Hannon 48 So.3d 811, 35 Fla. L. Weekly S675 (Cite as: 48 So.3d 811) Counsel appeared on behalf of the District, New Hope, the Tribe, the state attorneys, Concerned Citizens of Glades, the Audubon Society, Nathaniel P. Reid, and U.S. Sugar. In the midst of these proceedings, various parties filed motions to abate the proceedings and reopen them for the court to consider new evidence regarding a modification of the transaction, which the court granted. The parties engaged in more expedited discovery and filed more motions during this time. On August 26, 2009, the circuit court issued its final judgment, validating the COPs in the amount of $650 million, an amount sufficient to purchase 73,000 acres of property from U.S. Sugar. The order con- tained eight pages of factual findings and sixteen pages of legal conclusions. The court found that the District's responsibilities include restoring and clean- ing up the Everglades ecosystem; the District's Gov- erning Board had adopted resolutions amending the District's five-year plan to include acquisition of the U.S. Sugar lands, establishing a master lease -purchase program, and authorizing the issuance of COPs to finance these transactions; all of the meetings related to this matter had been open, public, and duly noticed. The court also found that under the master lease -purchase agreement, the District will purchase the property and ground lease the property to a non- profit Leasing Corporation. In turn, the Leasing Cor- poration will lease back the property to the District, which will manage the property and make improve- ments to it. Under the agreement, the District must determine annually whether to appropriate funds to pay the Leasing Corporation for the annual rental of the property, and the District regains possession of the property at the end of the ground lease. Additionally, a Master Trust Agreement was executed to issue COPs and to hold the proceeds from the COPs in trust to pay the costs of acquiring, constructing, and installing facilities on the sites. The COPs are secured by the lease payments. The court concluded that the District has the legal authority to issue the COPs, that the COPs will serve a legal purpose (water storage and treatment), and that the issuance of the COPs complies with the requirements of law. In June 2009, pursuant to sections 120.569 and 120.57, Florida Statutes (2009), and rule 28-106.201 of the Florida Administrative Code, New Hope re- quested a formal administrative hearing challenging the District's purchase of land from U.S. Sugar. Later, the Tribe filed a similar request. The District consol- Page 8 idated the parties' separate petitions for administrative hearing and dismissed them with prejudice for lack of standing. Both New Hope and the Tribe filed notices of administrative appeal, requesting that the district court grant them a formal hearing for their adminis- trative law claim. The District filed an all writs peti- tion, asking this Court to transfer the administrative appeals cases from the district court because the cases deal with the same issues presented *817 in the bond validation proceedings. We granted the petition and transferred the cases.rrn FN1. We consolidated the two administrative cases and reviewed them without oral argu- ment. See New Hope Sugar Co. v. South Fla. Water MRmt. Dist., No. SC10-330, 2010 WL 4709713 (Fla. Nov. 18, 2010), and Mic- cosukee Tribe v. South Fla. Water MRmt. Dist., No. SC10-336, 2010 WL 4709713 (Fla. Nov. 18, 2010). In September 2009, the Tribe and New Hope filed separate notices of appeal regarding the bond valida- tion proceeding. We granted the District's unopposed motion to consolidate the two bond validation appeals. We heard oral argument from the parties in April 2010. ISSUES AND ANALYSIS The parties raise a number of issues regarding the validity of the COPs, including: whether the trial court's findings of fact are complete; whether the trial court should have considered the economic feasibility of the project to be funded by the COPs; whether the COPs serve a public purpose; whether the transaction violates various constitutional provisions; whether the proposed financing structure is legal; whether COPs may be issued to purchase an option to buy certain property in the future; and whether the District may legally convey purchased lands to municipalities. 111[21[31[41 Judicial inquiry in a bond validation proceeding, both at the trial court and this Court, is limited to determining: (1) whether a public body has the authority to issue the subject bonds; (2) whether the purpose of the obligation is legal; and (3) whether the authorization of the obligation complies with the requirements of law. See City of Gainesville v. State, 863 So.2d 138, 143 (F1a.2003). This Court reviews the "trial court's findings of fact for substantial competent evidence and its conclusions of law de novo." Id. © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 48 So.3d 811, 35 Fla. L. Weekly S675 (Cite as: 48 So.3d 811) (citing Panama City Beach Cmty. Redev. Agency v. State, 831 So.2d 662, 665 (F1a.2002), and City of Boca Raton v. State, 595 So.2d 25, 31 (F1a.1992)). The final judgment of validation comes to this Court clothed with a presumption of correctness. See Strand v. Es - cambia County, 992 So.2d 150, 154 (FIa.2008). Moreover, the appellants have the burden of demon- strating that the record and evidence fail to support the lower court's conclusions. See Wohl v. State, 480 So.2d 639, 641 (F1a.1985). We consider the issues raised within this legal framework. 1. Findings of Fact and Economic Feasibility [5] The Tribe and New Hope argue that the fac- tual findings made by the trial court in its order of final judgment are incomplete because the trial court failed to consider the economic feasibility of the project and because the court failed to recognize that the proceeds of the COPs will be used to purchase 73,000 acres from U.S. Sugar and not to finance infrastructure projects on the land. In its conclusions of law in the final judgment, the trial court recognized that "the economic feasibility of the project is outside of its scope of review." The court acknowledged that the Tribe and New Hope had made strong arguments that the project is economically impossible. The court also questioned the wisdom of seeking this large amount of COPs during the current economic times. However, the court stated that it was "bound by precedent which instructs that economic feasibility is collateral to bond validation proceed- ings" and cited a number of previous decisions by this Court that stand for this proposition. Ultimately, the court stated that it "cannot and does not base its deci- sion*818 on whether the District will have the fi- nancing to actually complete a project of this magni- tude." This Court has repeatedly explained that the fiscal feasibility of a revenue project is an ad- ministrative decision to be concluded by the busi- ness judgment of the issuing agency. Such problems as the advisability of the project and its income potential, must be resolved at the executive or ad- ministrative level. They are beyond the scope of judicial review in a validation proceeding. State v. Manatee County Port Auth., 171 So.2d 169, 171 (F1a.1965). In Town of Medley v. State, 162 Page 9 So.2d 257, 258-59 (F1a.1964), we explained that the reasonableness and economic feasibility of the fi- nancing plan were "the responsibility and prerogative of the governing body of the governmental unit in the absence of fraud or violation of legal duty." See also Washin,2ton Shores Homeowners' Assn v. City of Orlando, 602 So.2d 1300, 1302 (F1a.1992) (stating that homeowners' complaint as to advisability of pro- ject is "collateral to" and "beyond the scope of" bond validation proceedings); State v. City of Sunrise, 354 So.2d 1206, 1210 (F1a.1978) (explaining that the Court cannot reach the question of whether the bond revenue plan is fiscally sound or whether the financing method was wise). This Court has adhered to these limitations over the years. For example, in State v. School Board of Sarasota County, 561 So.2d 549, 553 (F1a.1990), we stated that "[q]uestions of business policy and judg- ment are beyond the scope of judicial interference and are responsibility of the issuing governmental units." Similarly, in State v. City of Daytona Beach, 431 So.2d 981, 983 (F1a.1983), we stated that "questions concerning the financial and economic feasibility of a proposed plan are to be resolved at the executive or administrative level and are beyond the scope of ju- dicial review in a validation proceeding." [6] The rationale that underlies the limited judi- cial review in bond validation cases was explained by this Court in Town of Medley, 162 So.2d at 259: [T]he courts do not have the authority to substitute their judgment for that of officials who have de- termined that revenue certificates should be issued for a purpose deemed by them to be in the best in- terest of those whom they represent.... A contrary holding would make an oligarchy of the courts giving them the power in matters such as this to determine what in their opinion was good or bad for a city and its inhabitants thereby depriving the inhabitants of the right to make such decisions for themselves as is intended under our system of government. Indeed, "[t]he function of a validation proceeding is merely to settle the basic validity of the securities and the power of the issuing agency to act in the premises. Its objective is to put in repose any question of law or fact affecting the validity of the bonds." 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items Di.3 on 02-14-13 Todd B. Hannon 48 So.3d 811, 35 Fla, L. Weekly S675 (Cite as: 48 So.3d 811) Manatee County Port Atttlz„ 171 So.2d at 171. New Hope argues that there was no administra- tive determination of the economic feasibility of this plan. However, the Governing Board passed three separate resolutions authorizing this project, argued the merits of the project at various board meetings, and heard reports by District staff at a number of meetings and workshops. A reviewing court cannot go behind the resolutions of the Governing Board which authorized this project. Thus, we agree with the trial court's conclusion that economic feasibility is beyond *819 the scope of judicial review in a bond validation proceeding. 2. Public Purpose The Tribe and New Hope argue that the purpose of the obligation is not legal because the proceeds of the COPs will not be used for the purposes delineated by the District, but merely to buy land. They also argue that the public purpose cannot be discerned here because the District does not have specific projects planned for the various parcels of land to be acquired. "This Court has held that 'legislative declarations of public purpose are presumed valid and should be considered correct unless patently erroneous.' Strand v. Escambia County, 992 So.2d 150, 156 (F1a.2008) (quoting Boschen v. City of Clearwater, 777 So.2d 958, 966 (F1a.2001)). In its resolution ap- proving the purchase of the land from U.S. Sugar and the issuance of the COPs. the District's Governing Board stated that the acquisition of the land will serve a public purpose by increasing the water storage capability of the District to reduce harmful freshwater discharges from Lake Okeechobee to Florida coastal rivers and estuaries; improving the timing and quality of delivery of cleaner water to the Everglades ecosystem; preventing phosphorous from entering the Everglades ecosystem; eliminat- ing the need for "back -pumping" water into Lake Okeechobee and improving the sustainability of agriculture and green energy production all as more particularly described in staff report entitled Sum- mary of Benefits of the USSC Land Acquisition attached hereto as Exhibit A. Resolution No. 2008-1027, at 3, Governing Board of the South Florida Water Management District (Oct. 9, 2008). The Summary of Benefits referred to in the Page 10 Governing Board's resolution was authored by two District directors and the District's chief scientist. This report goes into great detail as to each of the benefits listed as a public purpose in the Governing Board's resolution. Additionally, the Legislature has declared that it is "necessary for the public health and welfare that water and water -related resources be conserved and protected" and that the "acquisition of real property for this objective shall constitute a public purpose for which public funds may be expended." § 373.139(1), Fla. Stat. (2008). The Legislature has also given water management districts the authority to "issue revenue bonds to finance the undertaking of any capital or other project for the purposes permitted by the State Constitution" and "to pay the costs and expenses in- curred in carrying out the purposes of this chapter." §. 373.584(1), Fla. Stat. (2008). In fact, the Legislature has provided that [t]he powers and authority of districts to issue rev- enue bonds ... shall be coextensive with the powers and authority of municipalities to issue bonds under state law. The provisions of this section constitute full and complete authority for the issuance of revenue bonds and shall be liberally construed to effectuate its purpose. § 373.584(2), Fla. Stat. (2008). For purposes of section 373.584, the definition of a project is broadly defined as a governmental undertaking approved by the gov- erning body of a water management district and in- cludes all property rights, easements, and franchises relating thereto and deemed necessary or convenient for the construction, acquisition, or operation thereof, and embraces any capital expenditure which the governing body of a water management district shall deem to be made for a public *820 purpose, including the refunding of any bonded indebtedness which may be outstanding on any ex- isting project. 373.584(4)(b), Fla. Stat. (2008). "Works of the district" are also broadly defined in chapter 373 as "those projects and works, including, but not limited to, structures, impoundments, wells, streams. and other watercourses, together with the appurtenant (D 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 48 So.3d 811, 35 Fla. L. Weekly S675 (Cite as: 48 So.3d 811) facilities and accompanying lands, which have been officially adopted by the governing board of the dis- trict as works of the district." § 373.019(26). Fla, Stat. (2008). [71 Thus, the District has authority to acquire lands to further the objective of conserving and pro- tecting water and water -related resources. This objec- tive has been deemed a "public purpose" by the Leg- islature, The District can also issue revenue bonds to finance the costs of carrying out its responsibilities and projects under chapter 373. Its authority to issue such bonds is coextensive with that of municipalities and is to be liberally construed so that it can serve its purpose. The lands upon which the District's projects reside are part of its statutorily defined works. In fact, it would be impossible for the District to construct its projects without first acquiring the accompanying lands. These statutes provide ample evidence to satisfy the first prong of our review, i.e., whether the District has the authority to issue the subject bonds. See City of Gainesville, 863 So.2d at 143. The Appellants cite this Court's decision in State v. Suwannee County Development Authority, 122 So.2d 190 (Fla.1960), in support of their argument that no public purpose has been proven. In Suwannee County, the Development Authority sought validation of revenue certificates for the purchase of land and construction of buildings that would be leased to pri- vate businesses. Id. at 191. There were no definite plans as to what land would be purchased with the proceeds from the sale of the certificates, what buildings would be constructed, or what firms would lease the buildings. Id. The Development Authority intended to devise the program after the validation. Id. On review, this Court explained that in order to de- termine whethcr an agency may lawfully expend the bond proceeds for the contemplated purpose, the is- suing governmental agency should set forth in the petition for validation "a description of the purpose for which the proceeds are to be used, which description should be sufficiently detailed to enable a member of the public and the state to determine whether the is- suing agency can lawfully expend public monies therefor." Id. at 193, Thus, "petitions for validation of bonds and revenue certificates should set forth in reasonable detail the purpose or purposes which will be accomplished with the proceeds." Id. at 194. The complaint for validation and two supple - Page 11 ments to the complaint that were filed in this case describe the land to be acquired with the proceeds of the COPs and the structure of the financing agreement. The complaint also states that the land will be used to further the District's mandate to restore natural re- sources. Exhibits filed with the complaint include the Governing Board's resolutions which authorize the land purchase, the issuance of COPs, and the financing structure; a report detailing the benefits to be derived from the land acquisition; a number ofreports relating to the District's projects and the Everglades restora- tion; and copies of the master lease -purchase agree- ment, the master trust agreement, the ground leases to be used for the leases between the District and the Leasing Corporation, the assignment agreement be- tween the Leasing Corporation and the named trustee, and the COPs to be issued. *821 In all, well over 500 pages of exhibits were filed with the complaint for validation. [81 This is a far cry from the Suwannee County case, where the complaint did not specify what land would be purchased, what buildings would be con- structed, and to whom the buildings would be leased. Here, the 73,000 acres have been identified. The land will be leased back to U.S. Sugar, which will be re- quired to maintain the land as specified in the ground lease and to use best practices in its farming. The land will eventually house various water storage and treatment projects. At the July 13, 2009, evidentiary hearing, the District's Executive Director specified the various projects and uses for each parcel of the 73,000 acres. In fact, it was the lack of such projects or planned uses for the remaining 107,000 acres that caused the trial court to deny validation of COPs for the purchase of those additional acres. This Court addressed a similar challenge based on the fact that "plans and specifications of the proposed improvements were not offered in evidence by" the governmental entity seeking validation in Rianhard v. Port of Palm Beach District, 186 So.2d 503, 505 (Fla.1966). In that case, we concluded that the intro- duction of the supporting resolution, which "suffi- ciently describe[d] the purposes for which the funds derived from the sale of the certificates [would] be expended," was "all that was necessary to justify validation." Id. We reiterated this holding in Strand, when we stated that "the admission of a resolution may be sufficient evidence justifying a bond valida- tion." Strand, 992 So.2d at 156. There, the County 0 2013 Thomson Reuters, No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 48 So.3d 811, 35 Fla. L. Weekly S675 (Cite as: 48 So.3d 811) offered into evidence its ordinance and resolution authorizing bonds for a road construction project and presented testimony concerning the purpose of the project and the financing mechanism. See id. at 155. We concluded that these legislative findings were "competent, substantial evidence sufficient to support the final judgment." Id. at 156. The same can be said in the instant case, where the trial court conducted nine days of evidentiary hearings resulting in thousands of pages of transcripts, heard testimony from numerous expert witnesses, and considered numerous evidentiary materials. The transcript contains numerous passages in which the trial judge questions witnesses to gain more infor- mation and asks the parties to clarify various issues. The trial court's order of final judgment is compre- hensive and well -documented. The arguments by the Appellants here do not meet the burden of "demon- strat[ing] from the record the failure of the evidence to support the [government body's] and the trial court's conclusions." Wohl v. State, 480 So.2d 639. 641 (F1a.1985). The trial court's final judgment of valida- tion comes to this Court "clothed with a presumption of correctness." Strand, 992 So.2d at 154 (citing Wohl, 480 So.2d at 641). We conclude that there is compe- tent substantial evidence in the record to support the finding of a public purpose. 3. Constitutional Challenges The Trihe and New Hope argue that the transac- tion is not valid because it does not comply with sev- eral provisions of the Florida Constitution. These include the prohibition in article VII, section 10 against using the state's taxing power or credit to aid a private entity or person; the requirement of article VII, section 12 that voters must approve bonds or COPs which are payable from ad valorem taxation and ma- ture more than twelve months after issuance; and the requirement in article VTI, section 11 that bonds issued by the state or its agencies must first be approved by the Legislature through an act relating to appropria- tions or by general law. For the reasons explained below, we conclude that *822 the instant transaction does not violate any of these constitutional provisions. a. Public Purpose Test of Article VII, Section 10 191 Article VII, section 10 of the Florida Consti- tution provides in pertinent part: "Neither the state nor any county, school district, municipality, special dis- trict, or agency of any of them, shall give. lend or Page 12 use its taxing power or credit to aid any corporation, association, partnership or person...." The Appellants contend that the land acquisition in this case violates this constitutional provision because the District is buying lands that will then be leased back to U,S. Sugar for a number of years, therefore not meeting the paramount public purpose test. F101[1111121 The basic test for determining whether an expenditure of public funds violates this section of the Florida Constitution is whether such expenditure is made to accomplish a public purpose. If the District has used either its taxing power or pledge of credit to support issuance of bonds, the purpose of the obligation must serve a paramount public purpose and any benefits to a private party must be incidental. See State v. JEA, 789 So.2d 268, 272 (F1a.2001) (cit- ing State v. Osceola County, 752 So,2d 530, 536 (Fla,1999)). If the District has not exercised its taxing power or pledged its credit to support the bond obli- gation, the obligation is valid if it serves a public purpose. See id. at 272; Northern Palm Beach Countv Water Control Dist. v. State, 604 So,2d 440, 441-42 (F1a.1992). Incidental private benefit from a public revenue bond issue is not sufficient to negate the public character of the project. JEA, 789 So.2d at 272. 1134141 As used in article VII. section 10, "credit" means "the imposition of some new financial liability upon the State or a political subdivision which in effect results in the creation of a State or political subdivision debt for the benefit of private enterprises." Jackson -Shaw Co. v. Jacksonville Aviation Auth., 8 So.3d 1076. 1095 (FIa.2008) (quoting Nohrr v. Bre- vard County Educ. Facilities Auth., 247 So.2d 304, 309 (Fla.1971)). This Court has explained that the lending of credit means: [T]he assumption by the public body of some de- gree of direct or indirect obligation to pay a debt of the third party. Where there is no direct or indirect undertaking by the public body to pay the obligation from public funds, and no public property is placed in jeopardy by a default of the third party, there is no lending of public credit. Id. (quoting State v. Housing Fin. Auth., 376 So.2d 1158. 1160 (FIa.1979)). Under this definition, we conclude that the COPs in this case do not con- template a pledge of the District's credit, and that only a public purpose, not a paramount public purpose, C-) 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 48 So.3d 811, 35 Fla. L, Weekly S675 (Cite as: 48 So.3d 811) need be shown, In its final judgment, the trial court concluded that the acquisition of the land would serve the public purpose of water storage and treatment. The trial court noted that the Governing Board had voted to approve the acquisition after much debate and that District witnesses had outlined, parcel by parcel, the immedi- ate and future benefits to be gained by the land ac- quisition, The court found that the following benefits would be achieved: storage and treatment of water before it is pumped into Lake Okeechobee; additional storage and treatment facilities that will work in con- junction with Comprehensive Everglades Restoration Projects basins; and land that will he valuable for future land swaps. Examples of valid "public purposes" that have been recognized by this Court rather broadly include an on -site road improvement project within a unit of a water control*823, district, see Northern Palm Beach County Water Control Dist., 604 So.2d at 443. the construction of an office building for a multistate insurance company, see Linscott v. Orange County Indus. Dev. Auth., 443 So.2d 97 (F1a.1983), and the purchase of mortgages from private homeowners to alleviate shortages in public housing, see State v. Housing Fin. Auth., 376 So.2d 1158 (F1a.1979). [151[16] "Under the constitution of 1968, it is immaterial that the primary beneficiary of a project be a private party, if the public interest, even though indirect, is present and sufficiently strong." State v. Housing Fin. Auth., 376 So.2d at 1160. Further, public ownership of a project to be funded by bond revenues is a "significant factor in a finding of public purpose." Northern Palm Beach County Water Control Dist., 604 So.2d at 443 (citing Orange County Indus. Dev. Auth. v. State, 427 So.2d 174, 179 (FIa.1983)). In the instant case, the District will retain title to the lands acquired. The land will be leased back to the seller U.S. Sugar to continue its agricultural opera- tions, which will generate revenues and maintain the land until the District can construct the infrastructure projects required for water storage and treatment for Everglades restoration. Because we conclude that the purchase of the property serves the public purposes of furthering Everglades restoration and the management of water resources, the requirements of article VII, section 10 are satisfied. Page 13 b. Voter Referendum Requirement of Article VII, Section 12 [17] Article VII. section 12 of the Florida Con- stitution, provides: Local bonds. -Counties, school districts, munici- palities, special districts and local governmental bodies with taxing powers may issue bonds, certif- icates of indebtedness or any form of tax anticipa- tion certificates, payable from ad valorem taxation and maturing more than twelve months after issu- ance only: (a) to finance or refinance capital projects au- thorized by law and only when approved by vote of the electors who are owners of freeholds therein not wholly exempt from taxation; or (b) to refund outstanding bonds and interest and redemption premium thereon at a lower net average interest cost rate. The trial court concluded that the referendum requirement of article VII, section 12 does not apply in this case because the District's obligation to make the lease payments is an annual obligation that does not extend more than twelve months and the lease pay- ments are not payable from ad valorem taxation within the meaning of the constitutional provision. The trial court found that the arguments advanced by the Tribe and New Hope ignored the plain language of the Florida Constitution, the relevant Florida Statutes, the governing resolution and agreements, and this Court's recent decision in Strand v, Escambia County, 992 So.2d 150, 157-59 (F1a.2008), in which this Court reaffirmed its long -held distinction between pledges of ad valorem taxing power and the use of ad valorem tax revenues. We agree. 1181[191 In State v. Miami Beach Redevelopment Agency, 392 So.2d 875 (F1a.1980), we explained that a referendum is not required by article VII, section 12 when there is no direct pledge of the ad valorem taxing power. Although contributions may come from ad valorem tax revenues, "[w]hat is critical to the con- stitutionality of the bonds is that, after the sale of the bonds, a bondholder would have no right, if [funds] were insufficient to meet the bond obligations ... to compel by judicial action the levy of ad valorem tax- ation." *824 Id. at 898. Where a governing body is not © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items ni.3 on 02-14-13 Todd B. Hannon 48 So.3d 811, 35 Fla. L. Weekly S675 (Cite as: 48 So.3d 811) obliged and cannot be compelled to levy any ad val- orem taxes, then the obligation is not "payable from ad valorem taxation" for purposes of article VII, section 12, and referendum approval is not required. Id.; see also State v. School Bd. of Sarasota County, 561 So.2d 549 (F1a.1990) (reaching same conclusion as to va- lidity of bonds and COPs to be issued by several school boards for the construction of schools). We recently reaffirmed our adherence to this reasoning in Strand, when we rejected Strand's motion on rehear- ing asking us to recede from the decision in Miami Beach as it relates to the meaning of "payable from ad valorem taxation" in article VII, section 12. Strand 992 So.2d at 157-59. The trial court found that the District has not pledged its ad valorem taxing powers to pay any sum under the lease agreement or any of the leases, cannot be compelled to levy any ad valorem tax to pay the lease payments, and cannot be compelled to pay any lease payments beyond one year. We agree. Under the terms of the Master Lease Purchase Agreement, the basic lease payments are payable only from funds appropriated by the Governing Board and are not payable "from any source of taxation." The District has not pledged its "full faith and credit ... for payment of such sums." Further, the agreement provides that "[n]either the [Leasing] Corporation, the Trustee, nor any certificate holder may compel the levy of ad val- orem taxes by the Governing Board to pay the lease payments." The District's Chief Financial Officer also testified that the way the deal was structured, none of the certificate holders could ever compel the District to levy ad valorem taxes in order to pay the District's obligations. Under the nonappropriation clause of the agreement, the obligations and liabilities are depend- ent upon appropriations being made by the Governing Board. Additionally, the Governing Board is free to terminate the lease annually without further obligation and the certificate holders are limited to lease reme- dies. The failure of the Governing Board to appropri- ate the sufficient funds for lease payments does not constitute a default, does not require payment of a penalty, and does not limit the District's right to pur- chase or use facilities similar in function. Instead, the nonappropriation of the funds results in the termina- tion of the lease, requiring the District to surrender possession of the facilities to the trustee for the re- mainder of the term of the ground lease. However, the fee title to the property remains in the name of the Governing Board. Thus, the terms of the agreement maintain the District's "full budgetary flexibility." Page 14 State v. Brevard County, 539 So.2d 461, 464 (F1a.1989); see also Sarasota County, 561 So.2d at 553 (finding that "annual renewal option preserves the boards' full budgetary flexibility"). The Tribe and New Hope assert that this nonap- propriation clause is illusory because the District cannot practically walk away from its obligation. They cite Frankenmuth Mutual Insurance Co. v. Magahaa 769 So.2d 1012 (F1a.2000), and Volusia County v. State, 417 So.2d 968, 969 (F1a.1982), in support of this argument. However, we find both cases to be distinguishable from the instant case. Frankenmuth involved a master lease agreement for computer equipment to be used for county payroll and central data processing for the county offices. In addition to a nonappropriation clause that terminated the lease if the funding authority failed to appropriate funds to make the lease payments, the agreement also contained a nonsubstitution clause, providing that the county could not purchase or rent substitute computer equipment for two years in the event of nonappropri- ation. *825 See Frankenmuth, 769 So.2d at 1014-18. Although the agreement stated that there was no pledge of ad valorem taxes by the county and the county could not be compelled to appropriate funds to make the lease payments, we concluded that the nonsubstitution clause rendered the nonappropriation clause illusory by compelling the county to make the lease payments or suffer the penalty of losing the computer equipment and not being able to substitute other computer equipment for two years. See id. at 1024. Thus, the county was "morally compel[led] ... to pledge ad valorem taxes to fulfill the obligations of the lease." Id. at 1026. Similarly, in Volusia County, 417 So.2d at 972, the county pledged all available revenues and cove- nanted "to do all things necessary to continue receiv- ing the various revenues" pledged in bonds for the construction of a new jail. We concluded that these two pledges would "inevitably lead to higher ad val- orem taxes during the life of the bonds, which amounts to the same thing." Id. Here, the master lease agreement contains a nonappropriation clause that gives the District the right to terminate the lease on an annual basis if the Governing Board should decide not to appropriate the funds for the lease. As this Court explained in 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items D5.3 on 02-14-13 Todd B. Hannon 48 So.3d 811, 35 Fla. L. Weekly S675 (Cite as: 48 So.3d 811) Frankenmuth, such nonappropriation or nonrenewal clauses are "essential to prevent long-term municipal financing arrangements from being classified as debt under state law, thus triggering state -law requirements such as voter referendum." 769 So.2d at 1024 (quoting Frankenmuth Mut. Ins. Corp, v. Magaha, 10 Fla. L. Weekly Fed. D340, D341, 1996 WL 571042 (N,D.FIa. Aug. 30, 1996)). Unlike Volusia County, there are no further pledges as to the source of revenues or efforts to maintain revenues. Unlike Frankenmuth, the only the penalties for nonappropriation are normal lease penalties, i.e., the District loses possessory interest for the term of the lease and this interest may be re -leased for the benefit of the certificate holders. At the ter- mination of the lease, the District regains possession and it always retains title to the land. We conclude that this structure maintains the District's budgetary Flexi- bility and thus does not require a referendum under article VII, section 12. [201 However, the arrangement could run afoul of this constitutional provision if the District should include under the master lease any lands that have been financed through a pledge of its ad valorem taxing power. Under Resolution 2009-500A of the Governing Board, the "Certificates [of Participation] will be payable from basic lease payments to be made by the District under the initial lease Schedule related to the lease of the U.S. Sugar Lands or other lands it currently owns." Resolution No. 2009-500A, at 2, Governing Board of the South Florida Water Man- agement District (May 13, 2009) (emphasis added). The substitution of other lands that implicate a pledge of the District's ad valorem taxing power would run afoul of the referendum requirement of article VII, section 12, and therefore such lands may not be sub- stituted. c. Legislative Approval under Article VII, Section 11(0 [211 Article VII section 11 of the Florida Con- stitution governs state bonds and revenue bonds. Subsection (f) provides that "[elach project, building, or facility to be financed or refinanced with revenue bonds issued under this section shall first be approved by the Legislature by an act relating to appropriations or by general law." This provision applies to bonds issued by "the state or its agencies." Art. VII, § 11(d), Fla. Const. The trial court *826 concluded that the legislative approval was not required in this case be- cause the District was not a state agency for purposes Page 15 of article VII of the Florida Constitution. The trial court based this conclusion on the fact that article VII, section 1(a) of the Florida Constitution prohibits the state and its agencies from levying ad valorem taxes, while article VII, section 9(b) authorizes the levy of ad valorem taxes "for water management purposes" and for "all other special districts." The court reasoned that because the District can and does levy ad valorem taxes, it cannot be deemed a "state agency" under article VII. [221 Water management districts have an "amorphous nature" in Florida law, being deemed state agencies or arms of the state for some purposes, but not for other purposes. Compare Fla. Sugar Cane League, Inc. v. South Fla. Water Mgmt. Dist. 617 So.2d 1065, 1066 (Fla. 4th DCA 1993) (explaining that the district is a "regulatory state agency" subject to Florida's Administrative Procedure Act), with Martinez.v. South Fla. Water Mgmt. Dist., 705 So.2d 611 (Fla. 4th DCA 1997) (determining that the District was not subject to the provisions of the Drug -Free Workplace Act because it was not a state agency). In this case the dispositive question is whether the Dis- trict is a "state agency" for purposes of article VII, section 11(f), which would require legislative ap- proval through general law or an appropriations act before the District could issue revenue bonds. In the past, we have concluded that water management dis- tricts are not included in the prohibition against state ad valorem taxation in article VII. section 1(a) of the Florida Constitution. See St. Johns River Water Mgmt. Dist. v. Deseret Ranches of Florida, Inc., 421 So.2d 1067, 1070 (F1a.1982) (concluding that ad valorem taxes levied by the district did not violate the consti- tutional prohibition against state ad valorem taxes because article VII section 9 "specifically authorizes the levying of ad valorem taxes for water management purposes," and section 373.503 of the Florida Statutes "provides the implementing legislation for ad valorem taxation to finance the works of the District"). While the Appellants are technically correct that Deseret Ranches did not hold that water management districts are not state agencies, we did recognize that the dis- tricts are not the "state" for purposes of finance and taxation under article VII of the Florida Constitution. See id. Accordingly, we agree with the trial court's con- clusion that legislative approval is not required before the District can issue these certificates of participation. 0 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 48 So.3d 811, 35 Fla. L. Weekly S675 (Cite as: 48 So.3d 811) 4. Financing Structure 1231 The Tribe asserts that the financing structure in this case is not legal. The trial court succinctly characterized the financing structure in its order of final judgment: The District proposes to issue COPs pursuant to a classic, annual appropriation, lease -purchase struc- ture that has been consistently approved by the Florida Supreme Court, Here, the District will purchase property which it will then ground lease to the Leasing Corporation. The Leasing Corporation will lease such property back to the District pursu- ant to the Master Lease Purchase Agreement. The District will manage such property and may make improvements thereto. Pursuant to Section 3.5 of the Master Lease Purchase Agreement, the District must annually determine whether to appropriate funds, which may include proceeds from ad val- orem taxes, to pay the Leasing Corporation for the annual rental of such property. Each of these structural elements is similar to those present in *827 School Board of Sarasota County, where title to the public lands remained in the school boards, the ground lease was up to thirty years, and "[m]oney from several sources, including ad val- orem taxation, [was] used to make the annual facil- ities lease payments." School Bd. of Sarasota County, 561 So.2d at 551. If, in any year, the District determines not to ap- propriate funds to make the annual rental payments, the Lease Term of all Leases under the Master Lease Purchase Agreement will terminate no later than the end of the District's fiscal year for which the District appropriated funds to make the lease payments. Upon such termination, the District must immedi- ately surrender and deliver possession of the prop- erty to the Trustee as assignee of the Leasing Cor- poration. The District surrenders possession only for the remaining period of the Ground Lease but does not surrender ultimate ownership of the prop- erty. At the end of the Ground Lease, the District regains possession of the property. During such pe- riod of the ground lease, the District may freely substitute other property for the property then con- trolled by the Leasing Corporation pursuant to the Ground Lease, The Tribe argues, first, that the District has no Page 16 authority to form and utilize the nonprofit Leasing Corporation, and second, that the financing structure is questionable under contract law because the leases between the District and the nonprofit Leasing Cor- poration are not supported by adequate consideration. The first argument was rejected by the trial court, which concluded that government entities may create nonprofit corporations for the sole purpose of facili- tating a COPs transaction. Indeed, in Leon County Educational Facilities Authority v. Hartsfeld, 698 So.2d 526, 527 (F1a.1997), a nonprofit corporation was established solely for the purpose of facilitating the financing, acquisition, construction, and equipping of a project by the Authority to operate a dormitory and food service project to serve students at the local universities and colleges. The Authority entered into a lease -purchase agreement with the nonprofit corpora- tion that was financed through the issuance of COPS. Similarly, in School Board of Sarasota County, 561 So.2d at 550-51, the school boards of several counties entered into lease -purchase agreements with nonprofit entities which were financed with COPs. Those agreements provided for the lease of public land owned by the boards to the nonprofit entities by way of ground leases, the construction or improvement of public educational facilities upon the leased lands and the annual leaseback of the facilities to the respective school boards by way of facilities leases, and the conveyance of the lease rights of the nonprofits enti- ties to trustees by way of trust agreements. See id. Section 373.584 of the Florida Statutes authorizes water management districts to issue revenue bonds. Section 373.584(2) gives water management districts powers and authority coextensive with municipalities to issue bonds under state law. In fact, this provision provides that the districts' power and authority to issue revenue bonds, ... and to enter into contracts incidental thereto, and to do all things necessary and desirable in connection with the issuance of revenue bonds, shall be coextensive with the powers and authority of municipalities to issue bonds under state law. The provisions of this section constitute full and complete authority for the issuance of revenue bonds and shall be liberally construed to effectuate its purpose. *828 § 373.584(2), Fla. Stat, (2008). We con- clude that under this broad grant of authority to "do all 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items o1.3 on 02-14-13 Todd B. Hannon 48 So.3d 811, 35 Fla. L. Weekly $675 (Cite as: 48 So.3d 811) things necessary and desirable in connection with the issuance of revenue bonds," id., the District has the ability to establish the nonprofit Leasing Corporation. The order of final judgment does not mention the Tribe's second argument regarding possible contract problems with the ground lease between the District and the leasing corporation due to lack of considera- tion. However, we would find no merit to the argu- ment, as the ground lease provides that the Leasing Corporation will handle the matters related to the COPs and their issuance and the matters related to title of the land and the leases. Thus, the nonprofit Leasing Corporation is supplying valuable services in consid- eration for the lease of the lands by the District. 5. Purchase of Land Option 1241The purchase agreement between U.S. Sugar and the District contains an "Option to Purchase Real Property," which gives the District an exclusive option to purchase an additional 107,000 acres for a period of three years after the closing date of the sale at a fixed price of $7400 per acre. During the following seven years, the provision gives the District a nonexclusive option to purchase the land at the appraisal value and the right of first refusal if U.S. Sugar sells the option land. There is no mention of a cost for this option in this section of the purchase agreement, only a listing of the cost per acre should the option be exercised. The parties disagree on whether the price to be paid for the 73,000 acres includes a cost for the option to purchase the additional 107,000 acres of U.S. Sugar land. Ad- ditionally, the District asserts that this issue was not raised below by the Appellants and thus is not pre- served for review by this Court. The order of final judgment states that the District is -initially acquiring approximately 73,000 acres for approximately $536 million, with a $50 million option to acquire the remaining 107,000 acres later in time." The record of the proceedings below is replete with evidence to support the trial court's factual determi- nation that the option to purchase the additional acreage will cost the District $50 million. The record also indicates that the Appellants raised the issue of the cost of the option during the hearing. In various written responses and throughout the validation hearing, the Appellants asserted that the option to purchase the additional 107,000 acres would cost the District $50 million. The District never di - Page 17 rectly contradicted these assertions and, in fact, the testimony of several District witnesses tends to sup- port the assertions. On redirect questioning, the Dis- trict's Deputy Executive Director in Charge of Ever- glades Restoration testified that the $50 million value of the option had been presented to the Governing Board. On cross-examination, the District's Budget Director admitted that the $536 million purchase price "appeared" to include payment for the option. Alt- hough the District's Executive Director would not assign a monetary value to the option, she admitted on cross-examination that an expert appraiser had "blended [the value of the option and the value of the land] together in a very intricate way." Additionally, the District never disagreed with the judge's charac- terization of the option as costing $50 million. The record of the May 2009 Governing Board meeting also supports the conclusion that $50 million was being paid for the option. The District's Director of Land Acquisitions testified that "the exclusive three-year option has a value the appraisers put in the marketplace of $50 million." *829 When asked by a Board member whether the $50 million would be credited to the land cost if the option were exercised, the Director responded no and explained that the $50 million had to be paid to U.S. Sugar at the closing. She further explained that "the $50 mullion is part of the acquisition price, the 536." The record of the bond validation hearing also negates the District's assertion that the Appellants never raised the issue of whether COPs can be used to purchase a land option. Counsel for both Appellants challenged the public purpose of the $50 million in COPs that would he spent on the option. The Tribe's counsel argued that the option money would not be spent on anything tangible, that there was no public benefit because the District was merely buying an opportunity, and that the taxpayers would be respon- sible for the $50 million debt even if the District never exercised the option. New Hope's counsel made a similar argument in closing, questioning the public purpose of the $50 million option. 1251Based on the portions of the record described above, we find competent, substantial evidence to support the circuit court's conclusion that the purchase agreement includes a $50 million cost for the option to purchase the remaining 107,000 acres of U.S. Sugar land. We also conclude that the issue of whether the 0 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 48 So.3d 811, 35 Fla. L. Weekly S675 (Cite as: 48 So.3d 811) option serves a public purpose was presented to the circuit court below and thus was properly preserved for our review. The circuit court found the record "essentially devoid of any information discussing how the remaining 107,000 acres (if acquired) would be utilized" and thus the legality of the bond validation as to that acreage could not be determined. Because no public purpose has been proven as to the land that is the subject of the option, no public purpose has been shown for the option either. Thus, we reverse that part of the circuit court's order validating $50 million in COPs related to the land option. 6. Conveyance of Land to Municipalities The Tribe argues that the transaction is illegal because the District plans to convey some of the ac- quired lands to local communities for economic de- velopment. The Tribe contends that the District does not have the legal authority to purchase land with the express purpose of conveying it to a local govern- mental entity and that a purchase for this purpose exceeds the District's statutory authority to purchase land so that "water -related resources [may] be con- served and protected." § 373,139(1), Fla. Stat. (2008). We find no merit to this argument. [2611271 The Legislature has given the District authority to convey land to a governmental entity. The statute specifically provides as follows: Any water management district within this chapter shall have authority to convey or lease to any governmental entity, other agency described herein or to the United States Government, includ- ing its agencies, land or rights in land owned by such district not required for its purposes under such terms and conditions as the governing board of such district may determine. § 373.056(4), Fla. Stat. (2008). Additionally, section 373.089(1), Florida Statutes (2008), authorizes the District to sell lands that the Governing Board has determined to be surplus. Thus, there is no question that the District has the authority to convey land to local communities. Moreover, the statutory authori- zation to dispose of surplus land clearly indicates that water management districts may acquire more land than is ultimately required for a project.*830 Cf. Dep't of Transp. v. Fortune Fed. Say. & Loan Ass'n, 532 So.2d 1267, 1269-70 (F1a.1988) (explaining that the state may take more property than necessary for a Page 18 contemplated project when it would save money by doing so). CONCLUSION With the exceptions stated above, we conclude that the District has the authority to issue the certifi- cates of participation for the purchase of the 73,000 acres from U.S. Sugar, that this obligation serves the public purpose of conserving and protecting water and water -related resources. and that the authorization of the obligation complies with the requirements of law. See City of Gainesville v. State, 863 So.2d 138. 143 (F1a.2003). However, because the purchase of the option does not serve a public purpose, COPs may not be issued to cover this expense. Further, to the extent that the substitution of other lands may implicate a pledge of the District's ad valorem taxing power, such lands may not be substituted. Accordingly, we affirm in part and reverse in part the circuit court's order of final judgment validating $650 million in certificates of participation to finance the land acquisition. It is so ordered. CANADY, C.J., and PARIENTE, POLSTON, LABARGA, and PERRY, JJ., concur. LEWIS, J., concurs in result only with an opinion. LEWIS, J., concurring in result only. Restoration of the Everglades and environmental protection are topics of both great public concern and importance. Water quality, flood control. water sup- ply, and ecosystem protection are critical concerns in Florida. The wisdom and desirability of positive steps to restore and protect our environment are beyond dispute. Governor Charlie Crist has proposed a bold vision for the future, and those involved in this work and movement should be commended. However, the wisdom, desirability, and vision of the underlying project are not considerations in the legal analysis of the validity of the proposed bond issue here. See Boschen v. City of Cleanvoter, 777 So.2d 958, 966 (F1a.2001) ( "Moreover, the wisdom or desirability of a bond issue is not a matter for our consideration."). I do recognize and acknowledge that my reading of Florida constitutional requirements and restrictions on long-term public debt payable from ad valorem taxa- tion is not currently the majority view of this Court and, therefore, I must concur in result only. 0 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submittedinto the public record in connection with items D1.3 on 02-14-13 Todd B. Hannon 48 So.3d 811, 35 Fla. L. Weekly 5675 (Cite as: 48 So.3d 811) The plan here is just another variety of the at- tempted devices to circumvent the Florida Constitu- tion, as established by Florida citizens, and contains highly questionable aspects, such as the creation of an excess land "real property slush fund" referred to in the final judgment below as "valuable for future land swaps." Additionally, the substance of this bond issue falls within article VII, section 12 of the Florida Con- stitution. which requires the approval of the voters in a referendum. First, the final judgment below addressed, and oral argument confirmed, that a portion of the pro- posed project includes "land that will be valuable for future land swaps" without any attempt to define or disclose anything further for the purpose of that land in this bond issue. While flexibility and economic considerations may favor this type of undisclosed "slush fund" of real property, considerations for legal validity do not allow this nebulous "pot of land." Not only does the law require more details or parameters, this "land swap" concept without boundaries*831 is certainly subject to abuse and mischief. The law of Florida with regard to public debt requires at least some detail with regard to all of the property pur- chased with the bond proceeds and, most certainly, more detail than just a "pot" of land for "future land swaps." See State v. Suwannee Cntv. Dev. Auth., 122 So.2d 190. 193-94 (F1a.1960), While this is not fatal for the entire project, the real property in the "slush fund" for -land swaps" should not be approved. This is not sufficiently detailed to allow the public or the State to legitimately determine whether the future undisclosed and indeterminate "land swaps" are proper expenditures of public monies. Second, and importantly, article VII. section 12. of the Florida Constitution requires that any long-term public financing payable from ad valorem taxes and maturing more than twelve months after issue be ap- proved through referendum: Counties .„ special districts and local govern- mental bodies with taxing powers may issue bonds land] certificates of indebtedness ... payable from ad valorem taxation and maturing more than twelve months after issuance only: (a) to finance or refinance capital projects au- thorized by law and only when approved by vote of the electors Page 19 Art, VIT, 12 Fla. Const. (emphasis added). The finding by the trial court and the bond ar- gument advanced by the bond proponents here that the obligation to make payments under the proposed structure is only an annual obligation and does not extend more than twelve months is fantasy at the highest level. This phantom and illusory "walk away" argument is built on a foundation of straw. Those who seek public money, but to avoid public approval, have developed a variety of devices that create a "theoret- ical" illusion that there is a legitimate escape from the obligation to continue payments beyond twelve months. This "phantom" escape argument has been rejected by this Court in Frankenmuth Mutual Insur- ance Co. v. Maeaha, 769 So.2d 1012 (F1a.2000). This Court has understood the necessity to look beyond the self-serving language and disclaimers of any long-term obligations to analyze the effect of the documents as applied and as a matter of practical reality. Just as the lease with a disclaimer of long-term obligations was held to be subject to article V1I, sec- tion 12, in Frankenmuth, the practical and actual op- eration of this structure creates long-term payment obligations beyond twelve months. It is pure mental gymnastics to accept that as a practical matter the Water Management District could default at any time and simply "walk away" from the amount of money invested. Frankenmuth applies here. In a similar manner, this non -income producing plan depends on ad valorem taxes to repay bond- holders. The uncontradicted evidence from the Water Management District established that with the pro- posed involvement of federal funds and the integrated nature of the proposed expansive water restoration work, the Water Management District would not and could not simply "walk away" from this land pur- chase. In my view, the decision to issue bonds to fund a project without first obtaining approval through a constitutionally mandated referendum is contrary to the clear and plain words of article VII, section 12. of the Florida Constitution. Article VI1, section 12, was clearly designed to address the expanding capital needs of local government, but was tempered by the inclusion of democratic control with regard to the decision to finance "capital projects" with long-term debt "payable from ad valorem taxation." *832Art. VII. § 12, Fla. Const. In this context, the majority's avoidance of this clear command perpetuates and 0 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items D1.3 on 02-14-13 Todd B. Hannon 48 So.3d 811, 35 Fla. L. Weekly S675 (Cite as: 48 So.3d 811) expands a distortion of our fundamental organic law, leads us beyond our prior precedent, and denies the voters of this State their constitutional right to deter- mine whether their local governments should issue long-term debt that is "payable from ad valorem tax- ation," as that phrase is understood through its "usual and obvious meaning." City of Jacksonville v. Cont'l Can Co., 113 Fla. 168, 151 So. 488, 489-90 (F1a.1933) ("The words and terms of a Constitution are to be interpreted in their most usual and obvious meaning.... The presumption is in favor of the natural and popular meaning in which the words are usually understood by the people who have adopted them."). With regard to typical "capital projects," the Constitution unmistak- ably communicates that entities of local government are required to use a referendum to obtain voter ap- proval when a pledge of ad valorem tax revenue or ad valorem taxing authority is a source of payment for relevant forms of long-term debt. See art. VII, § 12, Fla. Const. I write separately in this context to emphasize two additional points that, in my view, demonstrate the violence that expansion of the legal fiction of State v. Miami Beach Redevelopment AQencv, 392 So.2d 875 (F1a.1980), visits upon the plain text and manifest intent of article VII, section 12. First, much of our case law in this area has been opaque and counterintuitive due to its complete divorce from the text of this con- stitutional provision. Cf. Cont'l Can Co., 151 So. at 490 ("Constitutions import the utmost discrimination in the use of language, that which the words declare is the meaning of the instrument." (emphasis added)). Here, the Court should not expand prior decisions from different contexts to advance a movement away from the text of article VII, section 12. Second, article VII, section 10, of the Florida Constitution ("Pledging Credit") further undermines application of the "pledge of taxing power only" premise of Miami Beach in the context presented here. This separate, distinct constitutional provision demonstrates that the framers of our Constitution were aware of, and intended a textual distinction between, an entity of local government "giv[ing], lending] or using] its taxing power or credit," as addressed in that constitutional provision, and an entity of local government issuing "bonds, certificates of indebted- ness or any form of tax anticipation certificates, pay- able from ad valorem taxation," as addressed in article VII, section 12. (Emphasis added.) If the framers had Page 20 truly intended for article VII, sections 10 and 12, to each only address pledges of the taxing power of local government, then these constitutional drafters would have used similar language in section 12; however, they did not do so. Thus, the faulty premise of Miami Beach accomplishes that which we are proscribed from doing as judicial officers who have sworn to support, protect, and defend our state Constitution: It amends article VII, section 12, through judicial fiat by removing and rendering meaningless the phrase "payable from ad valorem taxation" and replacing it with materially different language drawn from a sep- arate, distinct constitutional provision (i.e., article VII, section 10). Cf, e.g., Burnsed v. Seaboard Coastline R.R., 290 So.2d 13, 16 (F1a.1974) ("It is a fundamental rule of construction of our [C]onstitution that a con- struction ... which renders superfluous, meaningless or inoperative any of its provisions should not be adopted by the courts."). As I have predicted before, like the hapless pro- tagonist in "Groundhog Day," this *833 Court will be forced to continuously relive this controversy until we "get it right," because the constitutional provision at issue simply does not support the gloss placed upon it by Miami Beach, which has been erroneously ex- panded to this context, and related, distinguishable decisions. Sooner or later we must recognize that the faulty expansion of Miami Beach to far different cases involving typical capital projects unjustifiably per- petuates an obvious legal error and deprives Florida's citizens of a clear constitutional right. Cf. Puryear v. State, 810 So.2d 901, 905 (F1a.2002) ( "Our adherence to stare decisis ... is not unwavering. The doctrine of stare decisis bends ... where there has been an error in legal analysis."). When faced with a typical capital project, such as the land -purchase plan involved in this case, I would interpret and enforce article VII, section 12, as written and would also salvage and apply a long -forgotten portion of our Miami Beach decision: "The Court looks at the substance and not the form of the pro- posed bonds" to determine whether the entity of local government has complied with the Constitution. 392 So.2d at 894 (emphasis added). Where, as here, the bond -financing plan will inevitably lead to diverting funds from ad valorem tax revenue to pay for or "service" the associated long-term debt for a non -revenue producing capital project, the Constitu- tion requires a referendum. See art. VII, § 12, Fla. © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 48 So.3d 811, 35 Fla. L. Weekly S675 (Cite as: 48 So.3d 811) Const.; see also Frankenmuth Mut. Ins. v. Masaha, 769 So.2d 1012, 1023-26 (FIa.2000) (holding that computer lease -purchase agreement, which would inevitably have required Escambia County to appro- priate ad valorem taxes to make lease payments, vio- lated article VII, section 12); County of Volusia v. State, 417 So.2d 968, 972 (F1a.1982) ("That which may not be done directly may not be done indirectly." (citing State v. Halifax Hosy. Dist., 159 So.2d 231 (F1a.1963))). Political expediency cannot alter the text of the Florida Constitution nor should it be used to thwart the will of the voters of this State. Consequently, I believe that expansion of the "pledge of taxing power only" premise of Miami Beach to typical capital projects violates article VII, section 12. and that any associated local -government bond -financing plan that will inevitably lead to di- verting funds from ad valorem tax revenue to service related long-term debt requires a referendum under our state Constitution. Thus, even if we follow Miami Beach, this project nevertheless violates article VII, section 12. Unlike Miami Beach, which involved a redevelopment project under the auspices of the Community Redevelopment Act (part III of chapter 163, Florida Statutes (1975)), this case only involves a typical "capital project" within the meaning of article VII, section 12, Furthermore, in contrast to Miami Beach -where ad valorem tax revenue was only a con- tingent source from which the city planned to service the associated debt if the primary source proved in- sufficient -here, ad valorem tax revenue is the primary source from which the debt created by these bonds will be paid. This distinction brings the instant case squarely within the rule and rationale of County of Volusia and Frankenmuth: The referendum require- ment cannot be circumvented because its bond -financing scheme inevitably requires that it pay for its debt with ad valorem tax revenue. The local -government shell game, which is played to avoid the Florida voter, should not be sanc- tioned by this tribunal. Unfortunately, we have done so in the past and do so today by improperly expand- ing this game to the very "capital projects" addressed in article VII, section 12. Even good or great ideas that require long-term *834 public debt payable from ad valorem taxation must follow constitutional require- ments. For these reasons, I can join in the result only, but reject the unjustifiable expansion of a fundamen- tally flawed principle, which operates to circumvent Page 21 voter participation in a decision that requires popular vote approval under the Florida Constitution. Fla.,2010. Miccosukee Tribe of Indians of Florida v. South Florida Water Management Dist. 48 So.3d 811, 35 Fla. L. Weekly S675 END OF DOCUMENT C) 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Westlaw. 80 So.2d 909 (Cite as: 80 So.2d 909) Supreme Court of Florida, Division B. Joseph T. MILLER et al., Appellants, v. Ernest E. CARBONELLI et al., Appellees. June 15, 1955. Rehearing Denied June 30, 1955. Suit by mayor and two councilmen of village made against remaining councilman, town clerk, and attorney to recover money paid attorney for his ser- vices as attorney for representation of first councilman in quo warranto action against first councilman by second councilman. The Circuit Court, Dade County, Marshall C. Wiseheart, J., entered judgment for de- fendants, and plaintiffs appealed. The Supreme Court, Thomas, J., held that where a councilman was elected mayor of village by council as provided by village charter and another councilman challenged by quo warranto first councilman's right to office, council was justified in expending public funds to insure that ac- tion they had taken in choice of mayor was properly defended. Judgment affirmed. West Headnotes Municipal Corporations 268 €860 268 Municipal Corporations 268XIII Fiscal Matters 268XIII(A) Power to Incur Indebtedness and Expenditures 268k860 k. Purposes of Appropriations or Expenditures in General. Most Cited Cases Where a councilman was elected mayor of village by council as provided by village charter, and another councilman challenged by quo warranto first coun- cilman's right to that office, council was justified in expending public funds to insure that action they had taken in choice of mayor was properly defended. Page 1 *909 Charles J. Bodner, Miami, for appellant. Anderson, Scott, McCarthy & Preston, Robert H. Anderson and George F. Gilleland, Miami, for ap- pellees. THOMAS, Justice. The complaint was filed by Joseph T. Miller, Charles J. Bodner, as mayor and councilman, and Paul J. Bauer, as councilman of the village of El Portal, against Ernest E. Carbonelli, Edward A. Cudlipp, C. L. Eddleblute, C. G. Nuckols, Fred L. Rouse, Joseph A. Wanick and Donald L. West, councilmen of the village, Elmer F. Boss, town clerk, and Robert H. Anderson, an attorney. The plaintiffs were described as citizens, residents and taxpayers of the village and all parties, except Joseph T. Miller and Robert H. Anderson, were represented as suing or sued in their individual as well as official capacities. The suit was brought as a class suit in behalf of the village and its citizens to retrieve from the de- fendants the sum of one thousand dollars paid An- derson for his services as an attorney for the repre- sentation of Cudlipp in a quo warranto action against Cudlipp by Bodner. Under the charter the mayor of the village is elected by the councilmen from their number. The council had elected Cudlipp to the post; Bodner chal- lenged by quo warranto Cudlipp's right to the office. The council, to protect Cudlipp's claim to the office by defending the action it had taken in electing him, paid the fee for his defense. We see nothing wrong in the action. Though Bodner and Cudlipp had a personal interest in the outcome, the village itself had a primary stake in the controversy because the office of mayor and the powers exercised by the incumbent were cast in doubt by the attack of one councilman against another. In this quarrel within the councilmanic family the issue not only immediately and directly affected the proper governance and administration of village af- fairs but the official action of the councilmen as electors was challenged. In this situation the council © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items Di.3 on 02-14-13 Todd B. Hannon 80 So.2d 909 (Cite as: 80 Scati 909) was thoroughly justified in expending public funds to insure that the action they had taken in the choice of a mayor was properly defended, and consequently to dispel any doubt about the exercise by Cudlipp of the prerogatives of the office of mayor. Cf. City of Jack- sonville Beach v. Waybright, 130 Fla. 525, 178 So. 401. *910Godard v. Campbell, 143 Fla, 419, 196 So. 814: Cheesebrew v. Town of Point Pleasant, 71 W.Va. 199, 76 S.E. 424, 79 S.E. 350. L.R.A. 1917D, 237. Affirmed, DREW, C. J., and HOBSON and THORNAL, JJ., concur. Fla. 1955 Miller v. Carbonelli 80 So.2d 909 END OF DOCUMENT 2013 Thomson Reuters. No Claim to Orig. US Gov. Works, Page 2 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon We'st 407 So.2d 277 (Cite as: 407 So.2d 277) c District Court of Appeal of Florida, Third District. Charles NUZUM, John Harris, and Sergio Abreu, Petitioners, v. Rene VALDES and Florida Beverage License, Inc., a Florida corporation, Respondents. No. 81-861. Dec, 8, 1981. Director of Division of Alcoholic Beverages and executive employees of the Division, against whom civil action had been brought for alleged interference with advantageous business relationships and inten- tional tort of conspiracy, applied for common-law certiorari following entry of order prohibiting staff counsel from Department of Business Regulation from further representation of petitioners in their in- dividual capacities. The District Court of Appeal, Nesbitt, J., held that: (1) order constituted a material injury not remediable after final judgment, and thus application would be entertained, and (2) activation of statute entitling public officers to representation at public expense in certain cases was primarily an ex- ecutive function, and thus order prohibiting staff counsel from representing petitioners personally con- stituted departure from essential requirements of law and would be quashed. Ordered accordingly. West Headnotes Certiorari 73 €'17 73 Certiorari 731 Nature and Grounds 73k11 Decisions and Proceedings of Courts, Judges, and Judicial Officers 73k17 k. Particular Proceedings in Civil Actions. Most Cited Cases Order prohibiting staff counsel from Department of Business Regulation from further representation of Director of Division of Alcoholic Beverages and ex - Page 1 ecutive employees of Division in their individual capacities in civil suit for alleged interference with advantageous business relationships and intentional tort of conspiracy constituted a material injury not remediable after final judgment, and thus application of director and executive employees for common-law certiorari would be entertained and order would be reviewed. jj Officers and Public Employees 2834E119 283 Officers and Public Employees 283111 Rights, Powers, Duties, and Liabilities 283k119 k. Actions by or Against Officers and Employees. Most Cited Cases Statute governing representation of public offic- ers at public expense recognized common-law prin- ciple that public officer is entitled to representation at public expense in a lawsuit arising from performance of official duties while serving a public purpose; to deny public official representation for acts purportedly arising from performance of his official duties would have a chilling effect upon proper performance of his duties and diligent representation of public interest. West's F.S.A. § 111.07. 2.1 Officers and Public Employees 283 €---'119 283 Officers and Public Employees 283111 Rights, Powers, Duties, and Liabilities 283k119 k. Actions by or Against Officers and Employees. Most Cited Cases Under statute allowing representation of public officer in civil suit at public expense, primary deter- mination as to allowance of counsel is placed in re- spective governmental unit rather than judiciary upon challenge by private litigant, although this does not preclude other properly authorized public officials like Attorney General from challenging expenditures made under statute. West's F.S.A. § 111.07. Officers and Public Employees 283 €=;''119 283 Officers and Public Employees 283111 Rights, Powers, Duties, and Liabilities 0 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 407 So.2d 277 (Cite as: 407 So.2d 277) 283k119 k. Actions by or Against Officers arid Employees. Most Cited Cases Whether Director of Division of Alcoholic Bev- erages and executive employees of Division were entitled to representation at public expense in a civil suit brought against them for alleged interference with advantageous business relationships and intentional tort of conspiracy was a determination primarily for the executive agency, and thus trial court order pro- hibiting staff counsel from Department of Business Regulations from further representation of Director and executive employees in their individual capacities constituted departure from essential requirements of law and would be quashed. West's F.S.A. § 111.07. *278 Harold F. X. Purnell, Tallahassee, for petition- ers. Donsky & Diner and Manuel Diner, Miami, for re- spondents. Before HENDRY, NESBI I I and JORGENSON. JJ. NESBITT, Judge. f 11 The petitioners are, respectively, the Director of the Division of Alcoholic Beverages and executive employees of the Division. The respondents, Valdes and Florida Beverage License, inc., commenced a civil action against the petitioners personally alleging an interference with advantageous business relation- ships as well as the intentional tort of conspiracy. The complaint alleges that they acted in bad faith and with a malicious purpose. On motion of the plaintiffs. the trial court entered an order prohibiting staff counsel from the Department of Business Regulation from the further representation of the petitioners in their indi- vidual capacities. We have entertained the petitioners' application for common law certiorari and review this order because we have determined it constitutes a material injury not remediable after final JUDGE- MENT. Section 111.07, Florida Statutes (1979) provides, in pertinent part: Any agency of the state, or any county, munici- pality, or political subdivision of the state is au- thorized to provide an attorney to defend any civil actions brought against any of its officers, ern - Page 2 ployees, or agents for acts or omissions arising out of and in the scope of their employment or function, unless, in the case of a tort action, such officer, employee, or agent acted in bad faith, with mali- cious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or prop- erty. *279 [21. This statute recognizes the common law principle that a public officer is entitled to represen- tation at the public expense in a lawsuit arising from performance of official duties while serving a public purpose. Markham v. State. Department of Reve- nue, 298 So.2d 210 (Fla. lst DCA 1974); Duplig v. City of South Daytona, 195 So.2d 581 (Fla. 1st DCA 1967). To deny a public official representation for acts purportedly arising from the performance of his offi- cial duties would have a chilling effect upon the proper performance of his duties and the diligent representation of the public interest. [31141 Our study of the statute leads us to con- clude that it was the intention of the Legislature that the primary determination as to the allowance of counsel be placed in the respective governmental unit rather than with the judiciary upon challenge by a private litigant.ITN11 Our view is buttressed by the fact that a court is not in a position to determine whether an officer, agent, servant, or employee has acted in bad faith or with a malicious purpose until the case has been terminated upon the merits. At such a point, legal services then being provided by the agency have been substantially concluded. Conse- quently we find that the activation of the statute is primarily an executive function. FM. This of course does not preclude other properly authorized public officials like the attorney general from challenging expendi- tures made thereunder. See Ellison v. Reid. 397 So.2d 352 (Fla. 1st DCA 1981). For the foregoing reasons, the order prohibiting staff counsel of the Florida Department of Business Regulation from representing the director and em- ployees of one of its divisions personally constitutes a departure from the essential requirements of law for which we award them certiorari and quash the order. Fla.App. 3 Dist., 1981. Nuzum v. Valdes C) 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 407Sv2d277 (Cite as: 4U780.2d277) 407So2dZ77 END OFDOCUMENT @2Ol]Thomson Reuters, NoClaim mObg.D5Gov. Works. Submitted into the public record inconnection with itennsgI.3mn 02-14'13 Todd B.Hannon Westlaw. 7 So. 642 26 Fla. 23, 7 So. 642 (Cite as: 26 Fla. 23, 7 So. 642) Supreme Court of Florida. PECK et al. v. SPENCER. June 6, 1890. Appeal from circuit court, Volusia county; JOHN D. BROOME, Judge. West Headnotes Equity 150 e:'392 150 Equity 150VIII Hearing, Submission of Issues to Jury, and Rehearing 150k392 k. Rehearing. Most Cited Cases Though rule 90 of equity practice in the circuit courts requires all applications for rehearing to be by petition, where an application for rehearing on an order dissolving an injunction is made by motion, objection thereto cannot be raised for the first time on appeal, as failure to make it when the application is made waives the objection. Injunction 212 €'1639 212 Injunction 212V Actions and Proceedings 212V(I) Continuing, Modifying, or Termi- nating 212k1628 Motions and Proceedings 212k1639 k. Reinstatement or revival. Most Cited Cases (Formerly 212k183) Where a temporary injunction has been granted and then dissolved, and the bill remains on file, and the cause is still within the control of the court, it is not error, on rehearing of the order dissolving the injunc- tion, to vacate that order and reinstate the injunction without a refiling of the bill. Page 1 Municipal Corporations 268 €995(2) 268 Municipal Corporations 268XIV TaxpayersSuits and Other Remedies 268k991 Restraining Action by Municipality or Officers 268k995 Misapplication of Funds 268k995(2) k. Payment of claims, bonds, or warrants. Most Cited Cases When a suit has been brought in the name of the state to test the validity of the election of a person as mayor of a town, and the council have authorized him to employ counsel to defend such suit at the expense of the corporation, an injunction will lie, at the suit of a taxpayer, against such appropriation of the corporate funds. Syllabus by the Court 1. The bill alleges that complainant has caused a suit to be instituted in the name of the state of Florida, upon complainant's relation, against B., to test the alleged election of B. as mayor of the town of D., and that complainant is a tax -payer of the town, and, with the other tax -payers of said town, is interested in having the funds of the town applied exclusively for legitimate purposes; and that the town council of D. have authorized B., acting mayor, to employ counsel at the expense of the corporation to defend said suit. Held, that the allegations of the bill are sufficient to grant preliminary injunction upon. 2. An application for rehearing upon an order to vacate an order dissolving an injunction, under rule 90, equity practice circuit courts, must be by petition; but when such application is upon motion, and there is no objection to the mode of the application in the lower court, and the objections is first made in the appellate court, the objection comes too late. A failure to object at the proper time was a waiver of the ob- jection. 3. It is not error after a bill has been filed and temporary injunction granted, and an order granted vacating the order granting the injunction and without refiling the hill, to grant an injunction upon the bill as 0 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items 0I.3 on 02-14-13 Todd B. Hannon 7 So. 642 26 Fla. 23, 7 So. 642 (Cite as: 26 Fla. 23, 7 So. 642) originally filed, the bill still being on file, and the case being still under the control of the court. 4. An application of the funds of a town, derived from taxation, for purposes beyond the purview of municipal grant, is a wrongful appropriation of the funds held in trust for the tax -payers and people to pay the legitimate expenses of the town, and is null and void, and resident tax -payers have the right to invoke the interposition of a court of equity to prevent an illegal disposition of the moneys of the corporation, or the illegal creation of a debt which they, in common with other property holders, may otherwise be com- pelled to pay. *24 **643 Doggett & Buckman, for appellants. Hamlin & Stewart, for appellee. MITCHELL, J. On the 3d day of January, 1889, the appellee filed his bill in the circuit court of Volusia county against the appellants, and, among other things, the bill al- leges, (substantially:) That an election was held in and for the town of Daytona, July 24, 1889, at which a mayor, council- man, and treasurer were to be elected, and that the complainant and one Courtland Buckman were can- didates for the office of mayor of said town, and that the election so held was illegal. That the complainant has caused a suit to be in- stituted in the name of the state of Florida, upon complainant's relation, against the said Buckman, to test the legality of said election, and that the com- plainant is a tax -payer in *25 said town, and with the other tax -payers thereof is interested in having the funds of the town applied exclusively for legitimate purposes. That the town council of the said town have au- thorized the said Buckman, acting mayor, to employ counsel at the expense of the corporation to defend said suit, and threatened suits against the councilmen and treasurer of said town. The prayer of the bill is for an injunction re- straining said town authorities from expending the funds of the town in defending such suits. Page 2 Upon filing the bill and affidavits, a preliminary injunction was granted as prayed. Afterwards, on September 16, 1889, upon motion of respondents and affidavits filed by them, the in- junction was dissolved, On the 17th day of the same month, upon motion of the complainant, and after hearing argument, the court granted an order vacating the order of September 16th dissolving the injunction, and reinstating the injunction. On the same day (Sep- tember 17th) solicitors for respondents filed their objections and exceptions to the granting of the order vacating the order dissolving the injunction, and granting the injunction. The objections and exceptions to the rulings of the court were: That the bill sets up no title to such relief in the complainant. That it is not properly sworn to. That this court has no jurisdiction of such matters. That there is no reason for the interference of a court of equity herein, or the granting of such a writ. That the bond is too small. *26 This motion was overruled, and respondents appealed, and have filed the following assignment of errors: (1) That the judge erred in permitting the filing of the bill in said cause. (2) That the judge erred in entertaining said cause, and in granting the restraining order of September 2, 1889. (3) That the judge erred in granting the order of September 17, 1889, vacating the order previously and solemnly made by him on the 16th day of September, 1889, dissolving the restraining order granted by him on September 2, 1889, (4) That the judge erred in refusing to grant the motion of September 17, 1889. 0 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 7 So. 642 26 Fla. 23, 7 So. 642 (Cite as: 26 Fla. 23, 7 So. 642) (5) That the judge erred in receiving, filing, and approving the paper called an `injunction bond,' on September 17, 1889. (6) That said judge erred in granting the re- straining order of September 17, 1889. (7) That said judge erred in refusing the motion to dissolve the restraining order granted on September 17, 1889. As to the first assignment of error. We are unable to comprehend the reasoning of counsel for appellants in their contention that the court erred in allowing the bill filed, because, under the statute, the bill had to be filed before the granting of the injunction, and the judge could have known nothing of the bill before it was filed, and could therefore have committed no error, as he had no control over the bill until it was filed. Second. We see no error in granting the prelimi- nary injunction. There is enough in the record, we think, to show that before the restraining order was granted the bill had been filed, and that the allegations of the bill were sufficient to grant the order upon. It is urged that the bill was not *27 properly sworn to, the affidavit being upon information and belief, but this is not tenable. The affidavit is 'that Champlin H. Spen- cer, hearing the bill read and knowing the contents thereof, swears that the same is true of his own knowledge, except as to the matters therein stated on information and belief, and as to those matters he believes it to be true.' All the allegations of the bill are upon the knowledge of the complainant, except as to the alleged illegal appropriation of the town funds, and as to this allegation complainant filed the affidavit of R. B. Woolseley, and what purports to be a transcript of the record of the proceedings of the town council of Daytona, showing that the said council had appropri- ated the sum of $200 **644 to defend the suits against the town authorities, for the purpose of showing the information upon which he based his information and belief in regard thereto. And the affidavit, when cou- pled with this evidence, is in strict compliance with the statute in such cases. It is contended that the court below erred in granting the order vacating the order dissolving the injunction upon mere motion. Page 3 Rule 90, equity practice in the circuit courts, re- quires all applications for rehearing to be by petition; and, as the application in the case under consideration was upon motion, if the respondents had objected in the court below upon the ground that the application for rehearing was upon motion, instead of petition, the objection would have been decisive of the case. But this objection was not made in the court below, and in failing to make the objection at the proper time the respondents waived it. The objection comes too late when, as in this case, it is made for the first time in the appellate court. It is further contended that the court erred in granting *28 the injunction, after the order of the 16th of September, 1889, dissolving the injunction, without again filing the bill; but in this we do not agree with counsel for appellants. A bill has been filed, it was still on file, and the case was still under the control of the court; it had not been finally disposed of; and there was, under the circumstances, no error in the court treating the bill as filed. As to the alleged illegality of said election, we express no opinion; that question cannot be raised by inj unction. There is but one other question to be considered, which is, did the court below err in granting the order prohibiting the application of the corporation funds to the payment of the expenses of said suits? We think not. It is contended for counsel for appellants that municipal corporations have the right to sue and be sued, to employ counsel to bring and defend suits, to protect its officers, and to indemnify them against acts done in the discharge of their duty; and cite McClel. Dig. 247; Smith v. Mayor, etc., 13 Cal. 531; 1 Dill. Mun. Corp. § 98; Pike v. Middleton, 12 N. H. 278; Fuller v. Groton, 11 Gray, 340; Sherman v. Carr, 8 R. I. 431 • Briggs v. Whipple, 6 Vt. 95. This contention is partly correct, and it is sup- ported by the authorities cited. The right of a corpo- ration, when it is interested, to sue and defend suits, is indisputable, and that municipal officers will be pro- tected so long as they keep strictly within the dis- charge of their duties is equally true; but all corpora- tions, whether public or private, derive their powers from legislative grant, and can do no act for which authority is not expressly given, or may not be rea- © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items Di.3 on 02-14-13 Todd B. Hannon 7 So. 642 26 Fla. 23, 7 So. 642 (Cite as: 26 Fla. 23, 7 So. 642) sonably inferred. 1 Dill. Mun. Corp. § 55. And now, admitting the right of corporations to sue and to de- fend suits, and to protect their officers in the lawful discharge of their duties, to be correct, still, where did the town council of Daytona derive their powers *29 to appropriate money in the defense of contested elections in the result of which the corporation had no pecuniary interest whatever? Such power is not given in its charter, either expressly or by reasonable im- plication. These contests are personal, and the corpo- ration can have no interest in the result, and an ap- propriation to pay any one of the parties the expenses he may be put to is without legal authority. An ordinance making an appropriation of the funds of a town or city, derived from taxation, for purposes wholly beyond the purview of municipal grant, is a wrongful appropriation of the funds held in trust for the tax -payers and people to pay the alimony and legitimate expenses of the town or city, and is, in short, ultra vires, null and void. Resident tax -payers have the right to invoke the interposition of a court of equity to prevent an illegal disposition of the moneys of a municipal corporation, or the illegal creation of a debt which they, in common with other property holders, may otherwise be compelled to pay. 10 Amer. & Eng. Enc. Laws, 962, and numerous authorities there cited; Lanier v. Padgett, 18 Fla. 842; Cotten v. County Com'rs. 6 Fla. 610: Murphy v. City of Jack- sonville, 18 Fla. 318. The judgment of the court below is affirmed. Fla. 1890 Peck v. Spencer 26 Fla, 23, 7 So. 642 END OF DOCUMENT 0 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 4 Submitted into the public record in connection with items DI.3 on 02-14- 3 Todd B. Hannon Westlaw, 495 So.2d 183, 11 Fla. L. Weekly 521 (Cite as: 495 So.2d 183) Supreme Court of Florida. STATE of Florida, etc., Appellant, v. DIVISION OF BOND FINANCE, etc., Appellee. No. 69087. Oct. 9, 1986. Division of Bond Finance sought validation of home ownership mortgage revenue bond issue. After hearing, the Circuit Court, Leon County, Charles E. Miner, Jr., J., validated the bonds, and State appealed. The Supreme Court, McDonald, C.J., held that: (1) DBF could issue taxable bonds pursuant to authority that did not specify certain type of bonds, and (2) State had failed to demonstrate that declarations of public purpose for bond issue were erroneous. Affirmed. West Headnotes al States 360 € '148 360 States 360IV Fiscal Management, Public Debt, and Se- curities 360k146 Bonds and Other Securities 360k148 k. Power and Duty to Issue. Most Cited Cases State Division of Bond Finance could issue taxa- ble bonds, pursuant to grant of authority to issue bonds without specification of certain type of bonds. West's F.S.A. §§ 215.57-215.83. 420.501-420.516. ill States 360 €148 360 States 360IV Fiscal Management, Public Debt, and Se- curities 360k146 Bonds and Other Securities 360k148 k. Power and Duty to Issue. Most Cited Cases Page 1 State had failed to demonstrate that declarations of public purpose of bond issue of $200,000,000 home ownership mortgage revenue bonds, indicated in res- olutions adopted by housing agency, governor and cabinet that bonds would serve public purpose by providing mortgages for low, moderate, and middle income persons at reasonable rates, were erroneous. Di Constitutional Law 92'999 92 Constitutional Law 92VI Enforcement of Constitutional Provisions 92VI(C) Determination of Constitutional Questions 92VI(C)3 Presumptions and Construction as to Constitutionality 92k998 Intent of and Considerations Influencing Legislature 92k999 k. In General, Most Cited Cases (Formerly 92k48(5)) Legislative declarations of public purpose are presumed valid and are to be considered correct unless patently erroneous. *183 William N. Meggs, State Atty., Second Judicial Circuit, Tallahassee, for appellant, Raymond K. Petty of Division of Bond Finance. Tal- lahassee, for appellee. McDONALD, Chief Justice. The state appeals a trial court order validating a bond issuance by a state agency. We have jurisdiction pursuant to article V, section 3(b)(2). Florida Consti- tution, and affirm the trial court's order. In February 1986 the Florida Housing Finance Agency adopted a resolution authorizing the issuance of $200,000,000 Home Ownership Mortgage Revenue Bonds. Sitting as the governing board of the Florida Division of Bond Finance (DBF), the governor and cabinet also adopted a resolution authorizing such bond issue. DBF then filed its complaint in the circuit court seeking validation of the bond issue. After © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 495 So.2d 183, 11 Fla. L. Weekly 521 (Cite as: 495 So.2d 183) holding a hearing on the matter, the trial court vali- dated the bonds. On appeal the state claims that the court's order should be reversed because DBF is not authorized to issue taxable. as opposed to tax-exempt, bonds and because the subject bond issue fails to serve a public purpose. We disagree with the state's contentions. The court's order states that these bonds "may be sold as either taxable, tax-exempt or any combination thereof." In its findings of fact the court recognized that DBF has no specific statutory authority to issue taxable bonds. It also found, however, that there is no statutory prohibition against issuing taxable bonds. Moreover, the court noted that the 1986 legislature amended section 215.84, Florida Statutes, *184 to provide for interest waivers ,for taxable bonds issued on behalf of state agencies. FN I. Ch. 8615, § 1, Laws of Fla., added the following sentence to the end of § 215,84(1), Fla.Stat. (Supp.1986): "This section shall be applicable to debt instruments whose interest is either taxable or tax exempt from income taxation under federal law existing on the date the bonds are issued." 1 1 DBF claims that its authority to issue these bonds,FN2 by not specifying one or the other, encom- passes both taxable and tax-exempt bonds. On its face the term "bonds" includes both taxable and tax-exempt bonds. Because the legislature did not specify a certain type of bonds, we conclude that DBF may issue these taxable bonds. FN2. §§ 215.57-215.83, 420,501-420.516, Fla.Stat, (1985). 121131 The trial court also found that the bonds will serve a public purpose by providing mortgages for low, moderate, and middle income persons at rea- sonable rates. Compare State v. City of Pensacola, 397 So.2d 922 (Fla.1981) (projects promoting decent housing serve a public purpose); State v. Housing Finance Authority, 376 So.2d 1158 (F1a.1979) (pro- jects alleviating a shortage of affordable housing and making capital available for investment in housing serve a public purpose). This finding echoes the findings in the resolutions adopted by the housing agency and the governor and cabinet. Legislative Page 2 declarations of public purpose are presumed valid and are to be considered correct unless patently erroneous. Pepin v. Division of Bond Finance, 493 So.2d 1013 (Fla.1986). The state has failed to demonstrate that the instant declarations of public purpose are erroneous. Therefore, we affirm the trial court's order vali- dating these bonds. It is so ordered. ADKINS, BOYD, OVERTON, EHRLICH, SHAW and BARKETT, JJ., concur. Fla.,1986. State v. Division of Bond Finance 495 So.2d 183, 11 Fla. L. Weekly 521 END OF DOCUMENT © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon Westlaw, 392 So.2d 875 (Cite as: 392 So.2d 875) Supreme Court of Florida. The STATE of Florida et al. and Homeowners and Tenants Protective Association, Inc., etc., Appellants, v. MIAMI BEACH REDEVELOPMENT AGENCY, etc., Appellee. No. 57997. Dec. 11, 1980. Rehearing Denied Feb. 11, 1981, Appeal was taken by the State and various inter- venors from a judgment of the Circuit Court, Dade County, Thomas A. Testa, J., validating bonds pro- posed for issue by a city redevelopment agency. The Supreme Court held that: ( I ) the redevelopment agency in the case was an entity authorized by statute to issue bonds; (2) the agency was a legally constituted entity with power to issue bonds in respect to a rede- velopment project within boundaries of city; (3) bond issues in case received the approval of a "governing body" as required by statute; (4) statutes authorizing redevelopment projects involving expenditure of public funds and providing basis in case for issuance of redevelopment bonds in a blighted area was in furtherance of a public purpose and was constitution- al; (5) conditions justifying exercise of redevelopment powers were established by competent, substantial evidence; and (6) proposed financing plan to issuance of bonds did not come within constitutional referen- dum requirement for ad valorem taxation, Affirmed. Alderman, J,, concurred in result only. Boyd, J., concurred in part and dissented in part and filed opinion. McDonald, J., dissented. West Headnotes al Municipal Corporations 268 €'917(2) Page 1 268 Municipal Corporations 268X111 Fiscal Matters 268XIII(C) Bonds and Other Securities, and Sinking Funds 268k917 Proceedings Preliminary to Issue of Bonds 268k917(2) k. Determination of Valid- ity, Most Cited Cases Statute authorizing the filing of a complaint to determine authority to incur a bonded debt by any county, municipality, taxing district or other political district or subdivision of the state encompassed all entities with authority to issue bonds and, hence, au- thorized the city redevelopment agency to institute an action for validation of bonds it proposed to issue to finance land acquisition and finance improvements in connection with community redevelopment projects. West's F.S.A. § 75.02. al Municipal Corporations 268 1.1 268 Municipal Corporations 2681 Creation, Alteration, Existence, and Disso- lution 268I(A) Incorporation and Incidents of Ex- istence 268k1 Nature and Status as Corporations 268k1.1 k. In General. Most Cited Cases (Formerly 268k1) The city redevelopment agency was a legally constituted entity despite claim that the city had no authority' to create the agency until after redevelop- ment authority was delegated to it by the county and it adopted a resolution finding the existence of blight where the county expressly referred to and recognized the city's creation of the agency with delegated rede- velopment powers to the city so that anything the city did without authority was ratified by that county, the city reaffirmed its earlier finding of blight and its creation of the redevelopment agency, and the county made clear its ratification of the actions taken by the city when it subsequently approved a bond resolution adopted by the agency. West's F.S.A. §§ 163.360, 163,410. 0 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items 0I.3 on 02-14-13 Todd B. Hannon 392 So.2d 875 (Cite as: 392 So.2d 875) DI Municipal Corporations 268 €917(2) 268 Municipal Corporations 268XIII Fiscal Matters 268X111(C) Bonds and Other Securities, and Sinking Funds 268k917 Proceedings Preliminary to Issue of Bonds 268k917(2) k. Determination of Valid- ity. Most Cited Cases The bond issues of the city redevelopment au- thority did receive the approval of the "governing body" of the city as required by statute since, when the county delegated redevelopment powers to the city, it reserved the authority to give final approval to any bond issue, the county commission did approve the subject issues by resolution, and when the city adopted and approved the final redevelopment plan, its action constituted an approval of the bonds, if one was nec- essary, sufficient to satisfy the statutory requirements. Vvrest's F.S.A. §§ 163.385(3), 163.410. LE Municipal Corporations 268 '957(3) 268 Municipal Corporations 268X111 Fiscal Matters 268X111(D) Taxes and Other Revenue, and Application Thereof 268k957 Constitutional Requirements and Restrictions 268k957(3) k. Limitations as to Rate or Amount, or Property or Persons Taxable. Most Cited Cases Purpose of constitutional provision prohibiting a municipality from using its taxing power to aid any corporation, association, partnership or person is to protect public funds and resources from being ex- ploited in assisting the promoting of private ventures when public would be at most only incidentally ben- efited. West's F.S.A.Const. Art, 7, § 10. 0_1 Eminent Domain 148 '13 148 Eminent Domain 1481 Nature, Extent, and Delegation of Power 148k12 Public Use 148k13 k. In General. Most Cited Cases Page 2 If a project serves a public purpose sufficient to allow expenditure of public funds and sale of bonds, then use of eminent domain in furtherance of project is also proper. West's F.S.A.Const. Art. 7, § 10; Art. 10, 6. Lo Municipal Corporations 268 €297(1) 268 Municipal Corporations 268IX Public Improvements 268IX(B) Preliminary Proceedings and Ordi- nances or Resolutions 268k297 Remonstrances or Objections 268k297( I ) k. In General. Most Cited Cases Challenge to legality of redevelopment project to be financed by proposed bonds was proper where invalidation proceedings brought by city redevelop- ment agency involved a determination not only of authority of agency to issue bonds and revenue cer- tificates, but also authority of agency to lawfully ex- pend proceeds for a contemplated purpose. West's F.S.A. §§ 163.335(1-3), 163.340(7). Ili Eminent Domain 148 e=:'67 148 Eminent Domain 1481 Nature, Extent, and Delegation of Power 148k65 Determination of Questions as to Va- lidity of Exercise of Power I48k67 k. Conclusiveness and Effect of Legislative Action. Most Cited Cases Determination of legislature that projects using eminent domain to clear blighted areas and providing for ultimate disposition of substantial portions of acquired properties for use of private concerns in profit -making activities serve a public purpose, while not conclusive. is presumed valid and should be up- held unless it is arbitrary or unfounded or so clearly erroneous as to be beyond power of legislature. West's F.S.A. §§ 163.360(6)(a), 163.370, 163.370( I )(i), 163.375 163.375(1-3). 11 Eminent Domain 148 €61 148 Eminent Domain 1481 Nature, Extent, and Delegation of Power © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items 0I.3 on 02-14-13 Todd B. Hannon 392 So.2d 875 (Cite as: 392 So.2d 875) 148k60 Taking for Private Use 148k61 k. In General. Most Cited Cases Municipal Corporations 268 E'223 268 Municipal Corporations 268VI Property 268k223 k. Purposes for Which Property May Be Acquired or Held. Most Cited Cases A public body may not use its governing authority over public funds to acquire land, whether by purchase or eminent domain, where only purpose of acquisition is to make properties available for private uses. West's F.S.A. §§ 163.360(6)(a), 163.370, 163.370(1)(i), 163.375, 163.375(1-3). L9_1 Eminent Domain 148 e18.5 148 Eminent Domain 1481 Nature, Extent, and Delegation of Power 148k16 Particular Uses or Purposes 148k18.5 k. Urban Renewal; Blight. Most Cited Cases Municipal Corporations 268 (;)859 268 Municipal Corporations 268XIH Fiscal Matters 268XIII(A) Power to Incur Indebtedness and Expenditures 268k859 k. Constitutional and Statutory Provisions. Most Cited Cases Municipal Corporations 268 C---"907 268 Municipal Corporations 268XIII Fiscal Matters 268XIII(C) Bonds and Other Securities, and Sinking Funds 268k907 k. Constitutional and Statutory Provisions. Most Cited Cases Statutes which authorized redevelopment projects involving expenditure of public funds, sale of public bonds, use of eminent domain for acquisition and clearance, and substantial private and commercial uses after redevelopment, and which provided a basis for issuance of bonds by city redevelopment agency to finance land acquisition and improvements for rede- Page 3 velopment of a blighted area were in furtherance of a public purpose and were constitutional notwithstand- ing that there were to be private commercial uses in redeveloped area. West's F.S.A. §§ 163.360(6)(a), 163.370, 163.370(1)(i), 163.375, 163.375(1-3), 163.380(1, 2), 163.385, 163.385(2), 163.387(1). fill Municipal Corporations 268 €=.911 268 Municipal Corporations 268XIII Fiscal Matters 268XIII(C) Bonds and Other Securities, and Sinking Funds 268k909 Purposes of Issue of Bonds 268k911 k. Public Improvements. Most Cited Cases Conditions ranging from conservation and reha- bilitation programs to area -wide acquisition and clearance were established by competent, substantial evidence and were such as to justify exercise of re- development powers by city redevelopment agency through issuance of bonds to finance a redevelopment project in a blighted area. West's F.S.A. §§ 163.335(1-3), 163.340(7). fin Municipal Corporations 268 €918(1) 268 Municipal Corporations 268XIII Fiscal Matters 268X111(C) Bonds and Other Securities, and Sinking Funds 268k918 Submission of Question of Issue of Bonds to Popular Vote 268k918(1) k. In General. Most Cited Cases Financing plan proposed by city redevelopment agency through issuance of bonds with respect to redevelopment project in a blighted area did not come within constitutional referendum requirement for ad valorem taxation where statute and bond resolutions declared that there was no pledge on the county and city ad valorem taxing power, statute provided that bond holders' lien attached only after revenues were deposited in trust fund, and ad valorem tax was not necessarily deposited directly into fund, but was merely the measure of contributions county and city would make annually from its general operating rev- enues until bonds had been paid. West's F.S.A. § 0 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 392 So.2d 875 (Cite as: 392 So.2d 875) 163.387(1, 2); West's F.S.A.Const. Art. 7, § 12. J J Constitutional Law 92 996 92 Constitutional Law 92VI Enforcement of Constitutional Provisions 92VI(C) Determination of Constitutional Questions 92VI(C)3 Presumptions and Construction as to Constitutionality 92k996 k. Clearly, Positively, or Un- mistakably Unconstitutional. Most Cited Cases (Formerly 92k48(1)) Constitutional Law 92999 92 Constitutional Law 92VI Enforcement of Constitutional Provisions 92VI(C) Determination of Constitutional Questions 92VI(C)3 Presumptions and Construction as to Constitutionality 92k998 Intent of and Considerations Influencing Legislature 92k999 k. In General. Most Cited Cases (Formerly 92k48(1)) A legislative finding of constitutionality is pre- sumptively correct, but a court must disapprove of it if it is clearly erroneous, and must look at the substance rather than the form. fjJ Municipal Corporations 268 943(1) 268 Municipal Corporations 268XIII Fiscal Matters 268XII1(C) Bonds and Other Securities, and Sinking Funds 268k940 Bona Fide Purchasers 268k943 Effect of Recitals in Bonds 268k943(I) k. In General. Most Cited Cases Once bonds are validated, and if appealed, vali- dation is affirmed, then recitations of constitutionality and satisfaction of conditions precedent are binding on the issuing authority, which will not be heard to question such matters in actions brought for the en- forcement of bondholders' rights. Page 4 J141 Municipal Corporations 268 €=943(3) 268 Municipal Corporations 268XIII Fiscal Matters 268XIII(C) Bonds and Other Securities, and Sinking Funds 268k940 Bona Fide Purchasers 268k943 Effect of Recitals in Bonds 268k943(3) k. Performance of Con- ditions Precedent to Issue and Regularity Thereof. Most Cited Cases Where bonds are unconstitutional and void ab initio, and the purchaser takes them with knowledge of their potential invalidity, recitals of constitutionality will not be held binding on the issuer, but after vali- dation, the courts will protect even the purchasers of unconstitutional bonds. 1151 Municipal Corporations 268 k 964 268 Municipal Corporations 268XIII Fiscal Matters 268XIII(D) Taxes and Other Revenue, and Application Thereof 268k960 Power to Tax for Special Purposes 268k964 k. Payment of Indebtedness. Most Cited Cases When a government agency with taxing power is authorized by statute to levy a tax and to appropriate the proceeds thereof due to the payment of bonds, the statutory authority to levy the tax may be regarded as mandatory and not merely permissible; after bonds have been issued, validated and sold, the statutory authority to devote governmental revenues to the retirement of bonds becomes a contractual duty to do so. 1161 Municipal Corporations 268 C=918(1) 268 Municipal Corporations 268XIII Fiscal Matters 268XIII(C) Bonds and Other Securities, and Sinking Funds 268k918 Submission of Question of Issue of Bonds to Popular Vote 268k918(1) k. In General. Most Cited Cases 0 2013 Thomson Reuters. No Claim to Orig. US Gov. orks. Submitted into the public record in connection with items D1.3 on 0202 Todd B. Hannon 392 So.2d 875 (Cite as: 392 So.2d 875) Words "payable from ad valorem taxation," in constitutional provision that power of counties, school districts, municipalities, special districts and local governmental bodies with taxing powers to borrow for capital projects, for terms in excess of 12 months, is conditioned, where obligations are to be payable from ad valorem taxation, on approval of eligible voters by referendum, did not preclude local revenue sources other than ad valorem taxation from being pledged without referendum, West's F.S.A.Const. Art. 7, § 12. 1171 Municipal Corporations 268 €;='918(1) 268 Municipal Corporations 268XIII Fiscal Matters 268XIII(C) Bonds and Other Securities, and Sinking Funds 268k918 Submission of Question of Issue of Bonds to Popular Vote 268k918(I) k. In General. Most Cited Cases That the statutory duty of the city and county to make the annual contributions would become a con- tractual duty, part of the obligation of the redevelop- ment bonds, did not mean that those bonds were payable from ad valorem taxation in the sense of the constitutional referendum requirement. West's F.S.A. § 163.387(1, 2); West's F.S.A.Const. Art. 7, § 12. 1181 Counties 104 C=195 104 Counties 1041X Taxation 104k195 k. Disposition of Taxes and Other Revenue. Most Cited Cases Municipal Corporations 268986 268 Municipal Corporations 268XIII Fiscal Matters 268XIII(D) Taxes and Other Revenue, and Application Thereof 268k984 Disposition for Municipal Pur- poses of Taxes and Other Revenue 268k986 k. Taxes for Special Purposes. Most Cited Cases There is nothing in the constitution to prevent a Page 5 county or city from using ad valorem tax revenues where they are required to compute and set aside a proscribed amount, when available, for a discreet purpose. West's F.S.A.Const, Art. 7, § 12. *878 Janet Reno, State Atty., and Milton Robbins, Asst. State Atty., Miami, for appellants. W. Robert Olive, Jr. and Hugh M. Taylor of Bryant, Miller & Olive, Tallahassee, and Murray H. Dubbin of Dubbin, Schiff, Berkman & Dubbin, Miami, for ap- pellee. Joseph A. Wanick, Miami, for intervening appellant. William S. Turnbull, Orlando, and Fred W. Baggett of Roberts, Miller, Baggett, LaFace, Richard & Wiser, Tallahassee, for Florida Downtown Development Ass'n, amicus curiae. PER CURIAM. This cause is before the Court on appeal of a judgment of the Circuit Court of the Eleventh Judicial Circuit, in and for Dade County, validating bonds proposed for issue by the Miami Beach Redevelop- ment Agency. The State of Florida and intervenors appeal; we have jurisdiction. Art. V, s 3(b)(2), Fla.Const.; s 75.08, FIa.Stat. (1979). We affirm the judgment of the trial court. The Miami Beach Redevelopment Agency was created by the commission of the city of Miami Beach pursuant to the Community Redevelopment Act of 1969, chapter 69-305, Laws of Florida, codified as chapter 163, part III, Florida Statutes (1975). The act was amended in 1977 to authorize "tax increment financing" of community redevelopment projects without referendum. Ch. 77-391, Laws of Fla.; see ch. 163, pt. III, FIa.Stat. (1977). The State Attorney of the Eleventh Judicial Cir- cuit, on behalf of the state, has raised a number of issues on appeal of the validation decree. Section 163.335(1), Florida Statutes (1977), de- clares that slums and blighted areas in the state are "a serious and growing menace, injurious to the public health, safety. morals, and welfare...." It states further that the existence of slums and blighted areas con- tributes to "the spread of disease and crime...." Such 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items D1.3 on 02-14-13 Todd B. Hannon 392 So.2d 875 (Cite as: 392 So.2d 875) areas are "an economic and social liability imposing onerous burdens which decrease the tax base and reduce tax revenues," and their existence "impairs or arrests sound growth, retards the provision of housing accommodations, aggravates traffic problems and substantially hampers the elimination of traffic haz- ards and the improvement of traffic facilities; ...." Finally, subsection (1) finds and concludes that the prevention and elimination of slums and blight is a matter of state policy and state concern in order that the state and its counties and municipali- ties shall not continue to be endangered by areas which are focal centers of disease, promote juvenile delinquency, and consume an excessive proportion of its revenues because of the extra services re- quired for police, fire, accident, hospitalization, and other forms of public protection, services, and fa- cilities, Section 163,335(2) contains a declaration of the range of public policy responses that are deemed ap- propriate in dealing with the problems of slums and blight. Some slums and blighted areas "can be con- served and rehabilitated through appropriate public action...." By the "means provided in this part," such conservation or rehabilitation may be effected so as to eliminate, remedy, or prevent the "evils enumerated." Other slums and blighted areas, in contrast, "or por- tions thereof, may require acquisition, clearance, and disposition subject to use restrictions, as provided in this part, since the prevailing condition of decay may make impracticable the reclamation of the area by conservation or rehabilitation." *879 Section 163,335(3) finds and declares that redevelopment as contemplated by the act is a public purpose for which public funds may be expended and the power of eminent domain and the police power exercised. Section 163.340(7) defines a slum as follows: (7) "Slum area" means an area in which there is a predominance of buildings or improvements, whether residential or nonresidential, which by reason of dilapidation, deterioration, age or obso- lescence, inadequate provision for ventilation, light, air, sanitation, or open spaces, high density of pop- ulation and overcrowding, the existence of condi- tions which endanger life or property by fire or other Page 6 causes, or any combination of such factors is con- ducive to ill health, transmission of disease, infant mortality, juvenile delinquency, or crime and is detrimental to the public health, safety, morals, or welfare. The act defines a blighted area as follows: (8) "Blighted area" means an area in which there are a substantial number of slum, deteriorated. or deteriorating structures and conditions which en- danger life or property by fire or other causes or one or more of the following factors which substantially impairs or arrests the sound growth of a county or municipality and is a menace to the public health, safety, morals, or welfare in its present condition and use: (a) Predominance of defective or inadequate street layout; (b) Faulty lot layout in relation to size, adequacy, accessibility or usefulness; (c) Unsanitary or unsafe conditions; (d) Deterioration of site or other improvements; (e) Tax or special assessment delinquency ex- ceeding the fair value of the land; and f) Diversity of ownership or defective or unusual conditions of title which prevents the free aliena- bility of land within the deteriorated or hazardous area. s 163.340(8), Fla.Stat. (1977). The essential difference between the two con- cepts as defined by the legislature is that a slum is an area where conditions actively and directly menace the essential public order while a blighted area is one where conditions are not conducive to sound growth and the public good is impaired by the various im- pediments to such growth. Section 163.350 provides that general purpose local government units counties and municipalities may, for the purposes of the act, formulate "a worka- ble program for utilizing appropriate private and pub- lic resources to eliminate and prevent the development C) 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 392 So.2d 875 (Cite as: 392 So.2d 875) or spread of slums and urban blight." To the objectives of encouraging needed community rehabilitation and providing for the redevelopment of slums and blighted areas, the statute again indicates a range of responses that may be appropriate: Such workable program may include provision for the prevention of the spread of blight into areas of the county or municipality which are free from blight through diligent enforcement of housing, zoning, and occupancy controls and standards; the rehabilitation or conservation of slum and blighted areas or portions thereof by replanning, removing congestion, providing parks, playgrounds and other public improvements, encouraging voluntary reha- bilitation, and compelling the repair and rehabilita- tion of deteriorated or deteriorating structures; and the clearance and redevelopment of slum and blighted areas or portions thereof. s 163.350, Fla.Stat. (1977). Section 163.355 requires that, in order for a county or municipality to exercise the authority con- ferred by the act, its governing body must find and declare by resolution that: (1) one or more slums or blighted areas exist within its boundaries and (2) that rehabilitation, conservation, "redevelopment," or a combination thereof is necessary "in the interest of the public health, safety, morals, or welfare of the resi- dents of such county or municipality." After having made such a finding of necessity, the governing body of the county or municipality may create a community redevelopment*880 agency, sep- arately constituted if necessary under section 163.356, or it may constitute itself as the community redevel- opment agency. s 163.357. The agency's authority includes "all the powers necessary or convenient to carry out and effectuate the purposes and provisions of this part," except that the governing body of the county or municipality retains the power to: (1) des- ignate an area as a slum or blighted, determine the appropriateness of a redevelopment project, and hold public hearings on these matters; (2) finally approve redevelopment plans; (3) authorize the issuance of bonds; and (4) approve the acquisition, demolition, removal, or disposal of property and assume respon- sibility for losses. s 163.358. In a chartered county, the powers conferred by the Page 7 act are conferred on the county governing body. The county may, however, delegate the redevelopment powers to a municipality within its boundaries. s 163.410. Section 163.360 provides that, once the county or municipal governing body has determined that an area is a slum or is blighted, and has designated it as ap- propriate for redevelopment, it may adopt a redevel- opment plan by following the steps and procedures outlined in the act. A community redevelopment "plan- is a description of a community redevelopment "project." It must indicate any acquisition, demolition, and removal of structures, as well as any improve- ments to be constructed and land uses provided for after redevelopment. In considering any proposed redevelopment plans, and before adopting one, the governing body must hold public hearings. The act requires detailed findings on the propriety of a pro- posed redevelopment plan. Section 163.370 provides that the redevelopment powers conferred include the authority to carry out projects involving the acquisition of slums and blighted areas, the demolition of buildings, the con- struction of streets, utilities, parks, playgrounds, and other improvements, disposition of properties at market value, programs of voluntary rehabilitation, and rehabilitation and sale of acquired struc- tures.ITN 11 FNI. As will be discussed later on in this opinion, the redevelopment agency may construct almost any kind of "improvement" deemed to be desirable. It may even construct luxurious housing units for subsequent sale or lease to private persons. Subsections 163.370(1)(a) 8 & 9 pertain to the use of -air rights sites" and contain an interesting limi- tation, not involved in this proceeding, on the use of such sites for housing. Section 163.370 outlines the powers of counties and municipalities to undertake projects, and such projects may include: 8. Acquisition, without regard to any re- quirement that the area be a slum or blighted area, of air rights in an area con- sisting principally of land in highways, railway or subway tracks, bridge or tunnel entrances, or other similar facilities which © 2013 Thomson Reuters, No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items 01.3 on 02-14-13 Todd B. Hannon 392 So.2d 875 (Cite as: 392 So.2d 875) have a blighting influence on the sur- rounding area and over which air rights sites are to be developed for the elimina- tion of such blighting influences and for the provision of housing (and related fa- cilities and uses) designed specifically for, and limited to, families and individuals of low or moderate income. 9. Construction of foundations and plat- forms necessary for the provision of air rights sites of housing (and related facili- ties and uses) designed specifically for, and limited to, families and individuals of low or moderate income. s 163,370(1)(a), Fla.Stat. (1977). The governing body's findings must include, s 163.360(6)(a), and the redevelopment project may include, consideration of the problem of and provision for relocation of displaced residents of the redevel- opment area. s 163.370(1)(i). In section 163,375, the act provides that counties, municipalities, and redevelopment agencies shall have the power of eminent domain to effectuate the pur- poses of the act. That is, they may "acquire by con- demnation any interest in real property, including a fee simple title thereto, which it may deem necessary for, or in connection with, a community redevelopment project and related activities under this part." s 163.375(1). In eminent domain proceedings, evidence of illegal or nonconforming uses and conditions, and their effect on the value of the property. are declared to be admissible in evidence. s 163.375(2). (3). The community redevelopment agency, after having acquired property in connection*88I with a redevelopment project, may sell, lease, otherwise transfer, otherwise dispose of, or retain such property for use in accordance with use restrictions imposed to effect the purpose of the redevelopment plan. s 163.380(1). The property must be disposed of at market value, s 163.380(2), and there must be public notice of the opportunity for interested persons to participate in redevelopment. Section 163,385 provides the authority for the issuance of bonds to finance redevelopment projects. It provides in part that, "(t)he security for such bonds Page 8 may be based upon the anticipated assessed valuation of the completed community redevelopment project and such other revenues as may be legally available." Subsection (2) provides: Bonds issued under this section shall not consti- tute an indebtedness within the meaning of any constitutional or statutory debt limitation or re- striction, and shall not be subject to the provisions of any other law or charter relating to the authori- zation, issuance, or sale of bonds. Bonds issued under the provisions of this part are declared to be issued for an essential public and governmental purpose and, together with interest thereon and in- come therefrom, shall be exempted from all taxes, except those taxes imposed by chapter 220 on in- terest, income, or profits on debt obligations owned by corporations. s 163.385(2). The act provides as the mechanism for the fi- nancing of projects that each redevelopment agency shall establish a redevelopment trust fund. The gov- erning body of the local government unit must, before the exercise of any redevelopment powers, provide by ordinance for the funding of the trust fund. s 163.387(1), Fla.Stat. (1.977), This subsection provides further: The annual funding of the redevelopment trust fund shall be in an amount not less than that increment in the income, proceeds, revenues, and funds of the county or municipality derived from or held in connection with its undertaking and carrying out of community redevelopment projects under this part. Such increment shall be determined annually and shall be that amount equal to the difference be- tween: (a) The amount of ad valorem taxes levied each year by all taxing authorities except school districts on taxable real property contained within the geo- graphic boundaries of a community redevelopment project; and (b) The amount of ad valorem taxes which would have been produced by the rate upon which the tax is levied each year by or for all taxing authorities except school districts upon the total of the assessed value of the taxable property in the community re- © 2013 Thomson Reuters. No Claim to Orig. US Gov, Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 392 So.2d 875 (Cite as: 392 So.2d 875) development project as shown upon the (most re- cent) assessment roll used in connection with the taxation of such property by each taxing authority (prior) to the effective date of the ordinance ap- proving the community redevelopment plan. When a redevelopment trust fund has been es- tablished, all taxing authorities in the redevelopment area except school districts must annually appropriate the ad valorem tax increment to the trust fund. s 163.387(2). The obligation to contribute annually to the trust fund continues until the retirement of all debt incurred in connection with the project, but "only to the extent that the tax increment described in this section accrues." s 163.387(3). That is, the obligation to appropriate to the fund arises only if the increment in tax revenue is actually collected. s 163.387(4). The act disclaims any right of bondholders to receive the taxing authorities' contributions until they are deposited in the redevelopment trust fund. "The holders of such bonds or notes shall have no right to require the imposition of any tax or the establishment of any rate of taxation in order to obtain the amounts necessary to pay and retire such bonds or notes." Id. Section 163.387 contains a final disclaimer: Revenue bonds issued under the provisions of this part shall not be deemed to constitute a debt, liabil- ity, or obligation *882 of the local governing body or the state or any political subdivision thereof, or a pledge of the faith and credit of the local governing body or the state or any political subdivision there- of, but shall be payable solely from the revenues provided therefor. All such revenue bonds shall contain on the face thereof a statement to the effect that the agency shall not be obligated to pay the same or the interest thereon except from the reve- nues of the community redevelopment agency held for that purpose and that neither the faith and credit nor the taxing power of the local governing body or of the state or of any political subdivision thereof is pledged to the payment of the principal of, or the interest on, such bonds. Id. s 163.387(5). The Miami Beach Redevelopment Agency's complaint sought validation of $80 million in bonds to finance land acquisition and $300 million in bonds to Page 9 finance improvements. In the judgment of validation, the court stated its findings, which we summarize as follows. On February 19, 1975, the Miami Beach City Commission adopted a resolution declaring that the south end of the city, as described in the resolution, is a "blighted area" within the meaning of the Commu- nity Redevelopment Act. The judgment of validation declares that this resolution, although adopted with a minimum of formality and evidence, is supported by the presumption that the commissioners were knowledgeable about conditions in their city. On February l7, 1976, the city commission created the Miami Beach Redevelopment Agency. On February I, 1977, the Dade County Commission delegated to the city the redevelopment powers provided for by the Community Redevelopment Act. Meanwhile, the Miami Beach Redevelopment Agency prepared a redevelopment plan for the project area in the south end of the city. In January, 1977, the city planning board found the plan to conform to the city's general plan. On March 2, 1977, the city com- mission approved and adopted the redevelopment plan. On July 1, 1977, chapter 77-391, Laws of Florida, amending the act to provide for tax increment fi- nancing, went into effect. On September 7, 1977, the city commission established a redevelopment trust fund and appropriated thereto the tax increment rev- enues to be realized from the redevelopment project. In January, 1978, the county commission ap- proved the redevelopment plan. On April 4, 1978, the county commission by resolution joined in the city's creation of the redevelopment trust fund and appro- priated to it the tax increment revenues it would real- ize from the project. On April 25, 1979, the city commission, after hearings, adopted resolution 79-15887, which reaffirmed the finding of blight in the area, the finding of necessity for redevelopment, and the creation of the redevelopment agency. In the validation decree, the trial court recited at length the evidence which it found supported resolu- tion 79-15887. The project area consists of some 235 acres. Of 420 structures in the area, 205 are "defective, substandard or obsolete requiring clearance to achieve sound planning objectives.- Most of the buildings are © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items 01,3 on 02-14-13 Todd B. Hannon 392 So.2d 875 (Cite as: 392 So.2d 875) over forty years old. A substantial number of them do not conform to the municipal building code. Most of the project area does riot conform to "current flood control criteria." The streets suffer from deterioration and subsidence. The storm and sanitary sewers are antiquated and unhealthy. Street lights are in a dete- riorated condition. The water system fails to meet flow requirements for fire protection. The court found further that there is "substantial" nonconformity of land uses to city building and zon- ing codes, including lot size, density, parking, and setback requirements. The 1323 separate parcels of land have 1200 separate owners, resulting in a 90 per cent rate of diversity of ownership. The fire and rescue service requirements per capita in the area are approximately twice those of the remainder of the city. With 4.3 per cent of the land area and 6.2 per cent of the population, the area *883 accounts for 12 per cent of the felonies committed in the city. Forty-seven per cent of the people in the area have incomes below "the poverty level." In 1978, the area accounted for $880,000 in municipal ad valorem, resort, franchise, and utility taxes (total city revenue) but accounted for $3,950,000 in city expenditures for public services. The court concluded that the area is a place of "sub -human living conditions" with nearly half the people "in abject poverty" surviving on a diet of cat food. These people are a drain on the city's capacity to provide social services. They pay exorbitant rents for the "hovels" in which they live. They are plagued by violent crime and fear to walk the streets at night. In 1971, the court found, the city adopted new zoning and housing codes. Enforcement of the new regulations failed to stem the tide of blight. A mora- torium on construction, promulgated in 1973, has not been challenged. From this the court concluded that private investors are not interested in the area because of current conditions. The redevelopment plan includes provision for relocation of some of the people who will be turned out because of demolition proposals. The court found: The plan, by phased relocation and construction of new housing, makes adequate provision for the re- location of those who are displaced from their pre - Page 10 sent places of residence in the South Shore area. The Agency, joined by the City of Miami Beach and Dade County, have made an irrevocable commit- ment to the residents of South Shore who will be relocated in the redevelopment of the area, that every humanitarian effort which is necessary will be made to assure minimal emotional trauma to those who are to be relocated. Additionally, the Agency and the two levels of government involved have guaranteed the availability of subsidized housing for all eligible displacees, and permanent subsidies for those who are over 65 years of age at the time of relocation. The Court further finds that the relocation of older residents in the area who subsist on fixed incomes which are at or below poverty level into decent, affordable, subsidized accommodations, together with the proper handling of these fragile people during the transition period will inure to their ben- efit and allow them the opportunity to achieve a quality of life and dignity which they could not hope to achieve in their present accelerating demoralizing conditions. The court found that the proposed bonds were to be issued to finance projects in furtherance of a public purpose, The court found further that the bonds to be issued were not in violation of article VII_ section 10, Florida Constitution. Nowhere in the final judgment, or anywhere in the record before us, is it indicated that the proposed bond issues have been approved by referendum. The trial court found that the proposed bonds are not payable from ad valorem taxation and therefore are not subject to the referendum requirement of article VII, section 12, Florida Constitution. The State Attorney of the Eleventh Judicial Cir- cuit, on behalf of the appellant the State of Florida, argues five issues in her brief. She contends that the Miami Beach Redevelopment Agency has no author- ity to bring an action for validation of bonds; that the agency is not a legally constituted entity; that the city commission was without authority to exercise the redevelopment powers provided for by the act; that the redevelopment project involves the use of eminent domain for purposes not public, in violation of article X, section 6, Florida Constitution; and that the bonds to be issued will be payable from ad valorem tax 0 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items 0I.3 on 02-14-13 Todd B. Hannon 392 So.2d 875 (Cite as: 392 So.2d 875) revenues but have not been approved by referendum as required by article VII, section 12, Florida Consti- tution. 1 11 The state attorney argues that the Miami Beach Redevelopment Agency is not one of the kinds of entities authorized under chapter 75, Florida Stat- utes (1979) to institute an action for the validation of *884 bonds, Section 75.02 provides for the filing of a complaint to determine authority to incur bonded debt by "any county, municipality, taxing district or other political district or subdivision of this state...." We have held that this language encompasses all entities with authority to issue bonds and that all such entities are therefore intended to be authorized to bring a complaint for validation. Nohrr v. Brevard County Educational Facilities District, 247 So.2d 304 (F1a.1971); State v. Inter -American Center Authority, 84 So.2d 9 (F1a.1955). Chapter 163 clearly authorizes the establishment of redevelopment agencies as po- litical bodies authorized to issue bonds. Therefore, this contention is without merit. 11. 121 The state attorney contends that the Miami Beach Redevelopment Agency is not a legally con- stituted entity. She points out that in the case of a chartered county, under section 163.410, the rede- velopment powers provided for by the act are vested in the county. The county may delegate the authority to a municipality with respect to redevelopment projects undertaken within the municipality's boundaries. The city created the agency on February 17, 1976 after finding the existence of blight on February 19, 1975. The county did not delegate redevelopment powers to the city until February 1, 1977. The state attorney asserts that under section 163.360, a local government cannot take any action in the redevelopment field until it has found and declared the existence of blight. Therefore, she argues, the city had no authority to create a redevelopment agency until April 25, 1979, when, after having had redevelopment authority del- egated to it by the county, it adopted a resolution finding the existence of blight. The agency responds that when the county dele- gated redevelopment powers to the city in February, 1977, it expressly referred to and recognized the city's creation of the agency in February, 1976. Anything the city did without authority was thus ratified by the Page 11 county. On April 25, 1979, the city reaffirmed its earlier finding of blight and its creation of the rede- velopment agency. When the county subsequently approved the bond resolutions adopted by the agency in connection with the project, it made clear its rati- fication of the actions taken by the city. We agree with the agency on this point. Clearly the local officials allowed the steps in the process to get somewhat out of order. Nonetheless, this fact alone does not present an impediment to our approval of the validation decree in this case. 131 The state attorney posits another failure to follow the process provided for by the statute. She points out that the city commission never passed an ordinance or resolution approving the issuance of bonds by the agency. Section 163.385(3) provides that the "governing body" meaning in this instance the city commission must authorize the issuance of redevel- opment bonds. The agency responds that when the county delegated redevelopment powers to the city pursuant to section 163.410. it reserved, as it may. the authority to give final approval to any bond issue, The county commission did approve the instant bond is- sues by resolution. For purposes of the section 163.385(3) requirement of approval of bonds by the "governing body," the agency argues, the county was that body. Furthermore, when the city adopted and approved the final redevelopment plan, its action constituted an approval of the bonds, if one was nec- essary, sufficient to satisfy the requirement of section 163.385(3). We agree with the agency and hold that the bond issues have received the approval of the "governing body." IV. The fourth issue in this case actually has two components, and we will treat them separately. The first is whether chapter 163, Florida Statutes (1977), violates the requirements of article VII section 10 and article X, section 6, Florida Constitution, that public bonded financing and the power of eminent domain must serve a public purpose.*885 The second is whether the determination of public purpose in this case is supported by competent, substantial evidence. A. The state attorney argues that the use of bond proceeds to acquire the land for the project by eminent domain is prohibited by article X section 6 Florida 0 2013 Thomson Reuters. No Claim to Orig. US Gov, Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 392 So.2d 875 (Cite as: 392 So.2d 875) Constitution, because the project does not serve a public purpose. This contention necessarily calls into question the constitutionality of chapter 163, which authorizes projects such as this one and declares that they serve such a public purpose. The state attorney might well have expanded her argument, because if the statute violates article X, section 6 by authorizing eminent domain without the justification of a public purpose, such lack of public purpose also renders the sale of any bonds and the expenditure of any public funds on the project a violation of article VII, section 10 Florida Constitution, provided the project is not among those excepted from that section.lFN21 See State v, Town of North Miami, 59 So.2d 779 (F1a.1952 ). FN2. Certain kinds of projects are specifi- cally allowed in article VII, section 10, which would have been held to violate that provi- sion under case law antedating various con- stitutional revisions or amendments. See, e. g., State v, Putnam County Dev, Auth. 249 So.2d 6 (F1a,1971). However, a project to be financed by bonds payable from taxation, undertaken by the state or a political subdi- vision, and serving a purely private purpose, would be impermissible under the due pro- cess clause of the Fourteenth Amendment to the United States Constitution, even if spe- cifically allowed by the Florida Constitution. See, e. g., Green v. Frazier, 253 U.S. 233, 40 S.Ct, 499, 64 L,Ed. 878 (1920); City of Clearwater v. State ex rel. United Mut. Life Ins. Co., 108 Fla. 623, 147 So. 459 (1933). i41 Article X, section 6 provides in part: (a) No private property shall be taken except for a public purpose and with full compensation therefor paid to each owner or secured by deposit in the registry of the court and available to the owner. Article VII, section 10 provides in part: Neither the state nor any county, school district, municipality, special district, or agency of any of them, shall become a joint owner with, or stock- holder of, or give, lend or use its taxing power or credit to aid any corporation, association, partner- ship or person; but this shall not prohibit laws au- thorizing: Page 12 (a) the investment of public trust funds; (b) the investment of other public funds in obli- gations of, or insured by, the United States or any of its instrumentalities; The remaining exceptions pertain to public capi- tal projects, industrial development projects, and electrical utilities projects. Art. VII, s 10(c), (d), Fla.Const. The purpose of article VII, section 10 is to "protect public funds and resources from being exploited in assisting or promoting private ven- tures when the public would be at most only inci- dentally benefited." Bannon v. Port of Palm Beach District, 246 So. 2d 737 741 Fla. 1971). [51 The standard for determining the question of "public purpose" is the same under article VII. section 10 and article X, section 6. If a project serves a public purpose sufficient to allow the expenditure of public funds and the sale of bonds under article VII. section 10, then the use of eminent domain in furtherance of the project is also proper. See State v. Town of North Miami, 59 So.2d 779, 785 (F1a.1952). State v. Town of North Miami was decided under article IX, section 10 of the Constitution of 1885, one of the predecessor provisions of article VII, section 10. Decisions construing predecessor provisions of the constitution having the same import as current provi- sions are sources of authority for the construction of the successor provisions. Weber v. Smathers, 338 So.2d 819 (F1a.1976); In re Advisory Opinion to the Governor, 112 So.2d 843 (F1a.1959). i61 We note that this challenge to the legality of the project to be financed by the proposed bonds is proper in these proceedings because -validation pro- ceedings involve a determination not only of the au- thority*886 of an agency to issue bonds or revenue certificates, but also whether the agency may lawfully expend the proceeds for the contemplated purpose." State v. Suwannee County Development Authority, 122 So.2d 190, [93 (F1a.1960). Under article VII, section 10, neither the state nor any of its subdivisions may expend public funds for or participate at all in a project that is not of some sub- © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items D1.3 on 02-14-13 Todd B. Hannon 392 So.2d 875 (Cite as: 392 So.2d 875) stantial benefit to the public, even where there is no proposed exercise of the eminent domain power and no public indebtedness, subject to the exceptions set out therein. See, e. g., State v. Housing Finance Au- thority. 376 So.2d 1158 (F1a.1979); State v. Putnam County Development Authority, 249 So.2d 6 (FIa.1971 ). 171 The legislature has determined that projects using eminent domain to clear blighted areas and providing for the ultimate disposition of substantial portions of the acquired properties for use by private concerns in profit -making activities serve a public purpose. This determination, while not conclusive, is presumed valid and should be upheld unless it is ar- bitrary or unfounded unless it is so clearly erroneous as to be beyond the power of the legislature. E. g., State v. Housing Finance Authority, 376 So.2d 1 158 (Fla.1979); Nohrr v. Brevard County Educational Facilities Authority, 247 So.2d 304 (Fla.1971); State v. Reedy Creek Improvement District, 216 So.2d 202 (FIa.1968); State v. Daytona Beach Racing and Rec- reational Facilities District, 89 So.2d 34 (F1a.1956). 181 This Court has declared many times that a public body may not use its governmental authority and its public funds to acquire lands whether by pur- chase or eminent domain where the only purpose of the acquisition is to make the properties available for private uses. E. g. Bavcol, Inc. v. Downtown Devel- opment Authority, 315 So.2d 451 (F1a.1975): City of West Palm Beach v. Williams, 291 So.2d 572 (F1a.1974); Grubstein v. Urban Renewal Agency. 115 So.2d 745 (F1a.1959); City of West Palm Beach v. State, 113 So.2d 374 (Fla.1959); State ex rel. Ervin v. Cotney, 104 So.2d 346 (FIa.1958); Panama City v. State, 93 So.2d 608 (F1a.1957); Adams v. Housing Authority. 60 So.2d 663 (F1a.1952): State v. Town of North Miami, 59 So.2d 779 (FIa.1952). In applying this rule, a long-standing corollary must be kept in mind: The mere fact that some one engaged in private business for private gain will be benefited by every public improvement undertaken by the government or a governmental agency, should not and does not deprive such improvement of its public character or detract from the fact that it primarily serves a public purpose. An incidental use or benefit which may be of some private benefit is not the proper test in de- termining whether or not the project is for a public Page 13 purpose. State v. Board of Control, 66 So.2d 209, 210-1 1 (Fla.1953). In State v. Town of North Miami, 59 So.2d 779 (FIa.1952), a local government sought to issue bonds to finance an industrial plant. The Court held the proposed bonds invalid under article IX, section 10 of the 1885 Constitution, which prohibited local gov- ernment aid or lending of credit to any private concern and which unlike our present article VII, section 10, provided no exception for industrial plants. Conceding the benefit of any new business to a community, the Court found that the private use and benefit were paramount and the public benefit only incidental. After distinguishing cases dealing with government office buildings, airports, and recreation projects, the Court said: In none of the cases decided by this Court since the adoption of our present Constitution have we ap- proved any special legislative acts which authorized any of the political subdivisions or governmental units of the State to acquire property and erect buildings thereon for the exclusive use of a private corporation for private gain and profit. Our organic law prohibits the expenditure of public money for a private purpose. It does not matter whether the *887 money is derived by ad valorem taxes, by gift, or otherwise. It is public money and under our organic law public money cannot be appropriated for a private purpose or used for the purpose of acquiring property for the benefit of a private concern. It does riot matter that (sic ) such undertakings may be called or how worthwhile they may appear to be at the passing moment. The financing of private enterprises by means of public funds is entirely foreign to a proper concept of our constitutional system. Experience has shown that such encroachments will lead inevitably to the ul- timate destruction of the private enterprise system. Id. at 784-85. In the later case of Panama City v. State, 93 So.2d 608, 610 (F1a.1957), the city, pursuant to authority in its charter, proposed to issue bonds and use eminent domain for a waterfront development project. The project was on two sites and consisted of a city hall, Submitted into the public 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. record in connection with items D1.3 on 02-14-13 Todd B. Hannon 392 So.2d 875 (Cite as: 392 So.2d 875) civic auditorium, other public buildings, two large marinas, and some "concession" buildings. The plan was to allow a number of private shops to operate in the concession buildings. The record showed that rentals from private uses would account for 20 per cent of the yearly project revenue, but that the shops would occupy only 1.22 per cent of the total area of the project. There was no question, the Court said, as to the public purpose of the city buildings, and marinas. The Court then approved the project because the evidence showed the remaining facilities to be "a necessary adjunct to the successful operation of the main enter- prise, namely the marina," Id, at 614. The private uses were not so substantial as to destroy the public nature of the project. So, article IX, section 10, Constitution of 1885, was not violated. See also Gate City Garage, Inc. v. City ofJacksonville, 66 So.2d 653 (F1a.1953). In City of West Palm Beach v, State. 113 So.2d 374 (Fla.1959), on the other hand, the Court examined a civic center and marina to be financed through the sale of bonds and found that the private use and ben- efit dominated the project. The project contemplated not only private servicing shops for the facility, but also lease of the civic center itself for operation by a private concern. In State v. Daytona Beach Racing & Recreational Facilities District, 89 So.2d 34 (F1a.1956), however, the Court upheld a finding of public purpose in the construction of a racetrack and stadium that were to be placed in private hands a substantial part of each year. Because of the enter- tainment value and the promotion of tourism, and because of provision for substantial public recrea- tional use, the Court concluded, "(t)he public purpose here seems to be predominant and the private benefit and gain to be incidental." Id. at 37. In City of West Palm Beach v. Williams, 291 So.2d 572 (F1a.1974), there was a challenge to the validity of leases of city -owned property to private persons to operate for profit. The city owned a facility consisting of a marina, gasoline station, restaurant, and parking lot. The city was operating the marina and the metered parking lot. The restaurant and service station were being leased to private persons and op- erated for profit. The challengers contended that these leases of public property for private gainful operation were unlawful. The Court noted that there was no proposal to spend public funds, sell bonds, or use Page 14 eminent domain. Legislation had authorized munici- palities to lease out properties determined not to be currently needed for public use. The Court upheld the validity of this authority. The question of how the city came to acquire such properties as a restaurant and a gas station was not raised. In Baycol, Inc. v. Downtown Development Au- thority, 315 So.2d 451 (F1a.1975), the local downtown development authority planned to issue bonds to fi- nance construction of a parking garage and shopping mall as one project. The bond resolution stated the purpose as improvement of traffic and parking facili- ties. After the validation of the bonds, the authority brought eminent domain proceedings. The landowners challenged the taking on the ground that there was no public purpose. After deciding that, *888 because of inadequacy of the notice of the details of the plan at the time of validation, the landowners could raise this challenge in eminent domain proceedings, the Court held that the private uses were more than incidental and deprived the project of a public purpose. The Court concluded from the record that without the private commercial activities, there was no demon- strated need for the parking garage. Parking was the purported public use underlying the project. But parking was incidental to the predominant private use of the retail shops. The tail was wagging the dog. In the above -discussed case of State v. Town of North Miami, 59 So.2d 779 (Fla.1952), the Court delivered a strict statement on the relation between private use and public purpose. That statement con- trasts with Panama City v. State, 93 So.2d 608 (Fla.1957), where the Court said, "(t)he development of the law in this State on this question and particu- larly a study of the legislative history with relation to public projects of a recreational and entertainment nature reveals the allowance to the public bodies of an extremely wide latitude in this field." Id. at 613. State v. Town of North Miami dealt with public construc- tion of a manufacturing plant which at that time was clearly impermissible. The Court there said: There is no similarity between this case and those where the Legislature authorizes a municipality to establish a sewage system, a water system, an elec- tric light plant, or to furnish some other public util- ity or service essential to the welfare of all the peo- ple of a municipality; or for the exercise of the po- lice power for slum clearance, or for the removal of 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 392 So.2d 875 (Cite as: 392 So.2d 875) blighted areas, or some such other undertaking for the protection and conservation of the public health, or to eliminate crime -breeding places or to conserve the morals, or protect the lives and limbs of the people. This is simply a case where the municipality is attempting to use the power of the municipality to purchase land and erect industrial or manufacturing plants thereon for the use of a private corporation for private profit and private gain. 59 So.2d at 787. It was recognized very early then that slum clearance and public housing, when declared to be so by the legislature, were public purposes. Since the public purpose put forth in the instant case is the re- development of a blighted area, we should give con- sideration to cases where the purposes of slum clear- ance and housing were in issue. In Marvin v. Housing Authority, 133 Fla. 590, 599 l83 So. 145 149 (1938), the Court had before it the "entirely new question" whether slum clearance and public construction of housing for persons of low income were projects with a public purpose. The leg- islature had authorized both the sale of bonds and the use of eminent domain in connection with such pro- jects. The Court held that there was no basis for re- jecting the nearly conclusive legislative determination that a public purpose would be served. In the subsequent case of Adams v. Housing Authority, 60 So.2d 663 (F1a.1952), the project in- volved "clearing a blighted area by acquiring by purchase or eminent domain real estate in the blighted residential arca and (making) it available for sale or lease to private enterprises." Id. at 664 (emphasis in original). The plan did not provide for the return of the acquired area to use for residential housing. The opinion discussed earlier cases, such as Marvin, where the Court had upheld projects under statutes providing for slum clearance and the construction of low-income housing on the cleared sites. Here, in contrast, the local authority planned to convey the sites for devel- opment and operation by private concerns, The Court found this deviation from precedent fatal: The question in this case is not simply the abatement or discontinuance of a nuisance or a Page 15 blighted area. This is not simply a case of slum clearance in order to promote the public health, safety, morals and general welfare of the inhabitants and citizens of Daytona Beach, On its face it is a "redevelopment" plan and a mere inspection of the plan shows it to be *889 a real estate promotion. The very words of the plan declare it to be for the pur- pose of acquiring title to and ownership of several blocks of property constituting six and one-half acres now used for residences to be redeveloped and sold or leased to private individuals, associations or corporations for private commercial and industrial purposes. As will be shown hereafter, it is not the purpose of the plan to acquire this land to erect new residences to be rented to persons in the low income brackets. Id. at 666-67 (emphasis in original). The Court held the plan violated article IX, section 10 and the restrictions on eminent domain, Constitution of 1885. In Grubstein v. Urban Renewal Agency, 115 So.2d 745 (F1a.1959), on the other hand, the project provided for by special law there involved clearance and redevelopment, with the ultimate return of most of the land to residential use. While some private com- mercial uses were to be permitted in the acquired area after redevelopment, these were found to be merely incidental they were necessary amenities. The public purpose underlying slum clearance and public hous- ing, the Court said, had long been established. The attack here being on the degree of private involvement which had been overwhelming in Adams the Court upheld the plan. The state attorney argues that Adams v. Housing Authority, stands for the proposition that, while "slum clearance" has a public purpose, to establish the ne- cessity for it there must be shown that conditions have deteriorated to the point where they constitute a direct danger to the public health, morals and welfare. A general purpose to make a "blighted area" more modern, more efficient, or more aesthetically pleasing is not enough. Therefore, she argues, to the extent that chapter 163 provides for clearance and redevelopment for the latter purposes, it is unconstitutional. It follows from her argument that in order to uphold chapter 163, we would have to hold that it may only be applied to areas where conditions are so unwholesome as to be a direct threat to public order. The act as so restrictively construed, she argues, cannot be applied to the pro- © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 392 So.2d 875 (Cite as: 392 So.2d 875) posed project on the record we have here, The Adams case held that a public purpose there was lacking because of the private development that was to take place on land taken by eminent domain, not because there was no "slum" to be cleared. We do not believe there is a constitutional rule, based on the degree of deterioration or dilapidation of an area, that separates those situations where public intervention is permissible from those where it is not. In Berman v. Parker 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954), the United States Supreme Court had for consideration an Act of Congress providing for the use of the eminent domain power in the redevelop- ment of blighted areas of the District of Columbia that were injurious to the public interest. The statute and the plan contemplated a comprehensive redevelop- ment with ultimate disposition to uses both public and private. The appellants were owners of a parcel on which was situated a department store. They argued that since their property was in commercial use and was not "slum" housing, and since the plan proposed ultimate disposition of the parcel to private use, the condemnation would violate the Fifth Amendment prohibitions against the deprivation of property without due process and the taking of property for a nonpublic purpose. The Court characterized one focal point of the argument: "To take for the purpose of ridding the area of slums is one thing; it is quite an- other, the argument goes, to take a man's property merely to develop a better balanced, more attractive community." Id. at 31, 75 S.Ct. at 101. The Court's response to the argument included the following comments: Public safety, public health, morality, peace and quiet, law and order these are some of the more conspicuous examples of the traditional application of the police power to municipal affairs, Yet they merely illustrate the scope of the power and do not delimit it. See *890Noble State Bank v. Haskell, 219 U.S. 104,111,31 S.Ct. 186, 188, 55 L.Ed. 112. Miserable and disreputable housing conditions may do more than spread disease and crime and immo- rality. They may also suffocate the spirit by reduc- ing the people who live there to the status of cattle. They may indeed make living an almost insuffera- ble burden. They may also be an ugly sore, a blight on the community which robs it of charm, which makes it a place from which men turn. The misery Page 16 of housing may despoil a community as an open sewer may ruin a river. We do not sit to determine whether a particular housing project is or is not desirable. The concept of the public welfare is broad and inclusive. See Day-Brite Lighting. Inc. v. State of Missouri. 342 U.S. 421, 424, 72 S,Ct. 405, 407, 96 L.Ed. 469, The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them. If those who govern the District of Columbia decide that the Nation's Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way. Once the object is within the authority of Con- gress, the right to realize it through the exercise of eminent domain is clear. For the power of eminent domain is merely the means to the end. See Luxton v, North River Bridge Co. 153 U.S. 525 529-530, 14 S.Ct, 891 892 38 L.Ed. 808. United States v. Gettysburg Electric R. Co., 160 U.S. 668 679, 16 S.Ct. 427. 429 40 L.Ed. 576. Once the object is within the authority of Congress, the means by which it will be attained is also for Congress to de- termine. Here one of the means chosen is the use of private enterprise for redevelopment of the area. Appellants argue that this makes the project a taking from one businessman for the benefit of another businessman, But the means of executing the pro- ject are for Congress and Congress alone to deter- mine, once the public purpose has been established. See Luxton v. North River Bridge Co., supra; cf. Highland v. Russell Car Co., 279 U.S. 253. 49 S.Ct. 314. 73 L.Ed. 688. The public end may be as well or better served through an agency of private enter- prise than through a department of government or so the Congress might conclude. We cannot say that public ownership is the sole method of promoting the public purposes of community redevelopment projects. What we have said also disposes of any contention concerning the fact that certain property owners in the area may be permitted to repurchase their properties for redevelopment in harmony with © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 392 So.2d 875 (Cite as: 392 So.2d 875) the overall plan. That, too, is a legitimate means which Congress and its agencies may adopt, if they choose. In the present case, Congress and its authorized agencies attack the problem of the blighted parts of the community on an area rather than on a struc- ture -by -structure basis. That, too, is opposed by appellants. They maintain that since their building does not imperil health or safety nor contribute to the making of a slum or a blighted area, it cannot be swept into a redevelopment plan by the mere dictum of the Planning Commission or the Commissioners. The particular uses to be made of the land in the project were determined with regard to the needs of the particular community. The experts concluded that if the community were to be healthy, if it were not to revert again to a blighted or slum area, as though possessed of a congenital disease, the area must be planned as a whole. It was not enough, they believed, to remove existing buildings that were insanitary or unsightly. It was important to redesign the whole area so as to eliminate the conditions that cause slums the overcrowding of dwellings, the lack of parks, the lack of adequate streets and alleys, the absence of recreational*891 areas, the lack of light and air, the presence of outmoded street patterns. It was believed that the piecemeal approach, the re- moval of individual structures that were offensive, would be only a palliative. The entire area needed redesigning so that a balanced, integrated plan could be developed for the region, including not only new homes but also schools, churches, parks, streets, and shopping centers. In this way it was hoped that the cycle of decay of the area could be controlled and the birth of future slums prevented. Cf. Gohld Re- alty Co. v. City of Hartford, 141 Conn. 135, 141-144, 104 A.2d 365, 368-370: Hunter v. Norfolk Redevelopment Authority. 195 Va. 326, 338-339, 78 S.E.2d 893, 900-901. Id. 348 U.S. at 32-36. 75 S.Ct. at 102-104. We find this reasoning to be persuasive both on the ques- tion of whether redevelopment of merely "blighted" areas serves a public purpose and the question of whether the public purpose is destroyed merely be- cause there will be private commercial uses in the redeveloped area. The application of chapter 163 to slum clearance and redevelopment was at issue in City ofJacksonville Page 17 v. Griffin, 346 So.2d 988 (F1a.1977). Landowners questioned the necessity for the taking of their prop- erty. The Court disapproved the district court of ap- peal decision. which had erroneously discarded the trial court's findings in reference to the questions of public purpose and necessity. In the course of doing so the Court implicitly held that the use of eminent do- main for slum clearance is constitutional even where the predominant land use of the area will ultimately be private. 191 We hold that chapter 163, Florida Statutes (1977), authorizing redevelopment projects involving expenditure of public funds, sale of public bonds, the use of eminent domain for acquisition and clearance, and substantial private and commercial uses after redevelopment, is in furtherance of a public purpose and is constitutional, The wisdom of authorizing the cataclysmic demolition and redesign of neighbor- hoods or even whole districts is not for the Court to determine. B. 101 The second component of the state attomey's argument, in which she is vehemently joined by the intervening appellant, is that the evidence in the court below was insufficient to establish the existence of conditions justifying the exercise of redevelopment powers under chapter 163, As has already been pointed out, chapter 163 prescribes a range of policy responses to the problems of slums and blight. These range from conservation and rehabilitation programs to area -wide acquisition and clearance. Between these two points lie the intermediate policies, which may involve any of a multitude of mixed programs. The use of eminent domain for acquisition and demolition of specific structures, along with other kinds of land use controls, involves a lower degree of government intrusion into the private real property market than does acquisition and clearance of a large area. The appellants argue that in order for the redevelopment plan to serve a public purpose, it must be shown that conditions are such that the particular degree of ac- quisition and clearance is necessary to accomplish the purposes of the act. Quoting from the redevelopment plan, the state attorney asserts that the statement of its "objective" reveals its purpose: The central objective of this Plan is to renew and 0 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 392 So.2d 875 (Cite as: 392 So.2d 875) create economic stimulation within this area to cre- ate an environment which will establish this area as the focal point of the community, to create a func- tioning balance of commercial (retail and office) and public space as well as to provide limited resi- dential uses which will re-establish the aesthetic, economic and social viability of the project area. The purposes of the act, she argues, are the elimination of slums and blight and such redesign and redevelopment of the area as are necessary to prevent their return, and not redesign of an area in order to promote new, different land uses that are perceived by officials as desirable. *892 The statute defines "blighted area" as: an area in which there are a substantial number of slum, deteriorated, or deteriorating structures and conditions which endanger life or property by fire or other causes or one or more of the following factors which substantially impairs or arrests the sound growth of a county or municipality and is a menace to the public health, safety, morals, or welfare in its present condition and use: (a) Predominance of defective or inadequate street layout; (b) Faulty lot layout in relation to size, adequacy, accessibility or usefulness; (c) Unsanitary or unsafe conditions; (d) Deterioration of site or other improvements; (e) Tax or special assessment delinquency ex- ceeding the fair value of the land; and (f) Diversity of ownership or defective or unusual conditions of title which prevents the free aliena- bility of land within the deteriorated or hazardous area. s 163.340(8), F1a.Stat. (1977). The state attorney declares that the record shows that the redevelopment plan proposes the demolition of all of the 420 buildings in the area except for eight to twelve existing buildings deemed to be compatible Page 18 with the project. The improvements to be made in- clude new streets and utilities, a system of canals, and the construction of luxury apartment buildings, hotels, stores, and parks. The state attorney makes reference to a survey, which the Agency concedes "forms the basis upon which the final plans for redevelopment have evolved," that concluded that much of the area could be conserved. The survey report called for much less acquisition and demolition than the plan proposes. Another study, part of the record below, concluded that the vast majority of the structures in the area are sound. The City of Miami Beach, appellant states, adopted its first zoning ordinance in 1930. In 1971, it adopted a new zoning ordinance. Under the new or- dinance, all the existing buildings in the area were rendered nonconforming. The final judgment's reli- ance on the nonconformity in upholding the finding of blight, it might be suggested, recognizes the retroac- tive creation of blight by local ordinance. The state attorney argues that evidence that pri- vate investment in the area is not feasible without the redevelopment plan has also been created by local government. In September, 1973, the City imposed a moratorium against the issuance of building permits for the area. This ban on construction and improve- ments was to last six months. Appellants state that it has been in effect continuously since its initial adop- tion. Appellee disputes this, but neither party's ap- pendix shows clearly what the facts are with regard to this moratorium. The trial court found that the mora- torium in no wise prevented rehabilitative steps by landowners, and that the evidence was all to the effect that property owners simply had no interest in ex- pending their funds in this area. The state attorney asserts that over half the real property in the area is publicly owned, much of it being the property of the city and composed of streets and parks. She argues that the deteriorated condition of these facilities can be remedied without the large-scale use of eminent domain, and therefore the drastic actions proposed by the plan are unnecessary. The area has about 7000 residents, most of them elderly and of low income. Some of them own houses or condominiums. Most, however, rent apartments or rooms. The Agency estimates that the plan will uproot 4200 households and 450 businesses. The redevel- © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 392 So.2d 875 (Cite as: 392 So.2d 875) opment plan provides for the construction of one low income housing project with 450 units. Most displaced families and individuals, therefore, will have to be relocated out of the area. Appellants assert that there was no showing whatsoever of a relationship between conditions in the area and disease. They also declare that there was no evidence that the buildings in the area constitute fire hazards. The Agency refers us in the record to the minutes of a city commission *893 meeting where it was reported that the area, with 6.2 per cent of the city's area and 4.6 per cent of its population, had 11,7 per cent of the fire calls and 12.98 per cent of all "rescue incidents." The appendices before us do not show the source of this information, nor whether the incidence of fire and accidents were at all related to the conditions of the buildings (as opposed to the characteristics of the inhabitants). The appellants argue that the trial court's finding of a relationship between conditions in the area and the crime rate is erroneous. Appellants attribute some of the area's higher incidence of crime to the presence of a public pier and beach recreation area, which draws all kinds of elements from outside the area. The fact that most of the area's residents are elderly, and thus vulnerable to street crime, appellants assert, does not establish any relationship between conditions in the area and crime. The appellants also question the court's conclu- sion that the area has a faulty lot and street layout, as determined by the redevelopment plan. Appellants contend there is no evidence to support this finding. The court found that the redevelopment plan, providing as it does for the assisted relocation of the residents, will contribute to the welfare of those peo- ple and better their lot in life. The appellants point out, however, that the betterment of the conditions under which the residents live does not appear to be the main thrust of the redevelopment plan. Many of the factors cited that pertain to the residents their poverty, their relatively high need for social services, etc. are at- tributable to age and disability and not to the physical conditions of the area. The problems of age and disa- bility will follow the residents wherever they are re- located. For most of them, that will be outside the area. When poor people are in the market for housing. Page 19 they tend, because of their relative lack of economic power, to choose the relatively less desirable places to live. Dwellings that are available at a low rental, un- less subsidized, tend to be in the less desirable neighborhoods, that is, the blighted areas. In a society committed to equitable distribution of social services based on need, such areas will always consume more in public services than they produce in ad valorem taxes. Therefore, reliance on a deficit of services consumed vis-a-vis taxes collected is not alone a jus- tification for condemnation of an area and dispersal of its residents. Incidentally, whatever benefit may ac- crue to the community at large from the redevelop- ment of the south end of the city, and to the new res- idents who will live there after redevelopment, the project guarantees no direct relief to the displaced poor. The trial court found, however, a benefit to the displaced poor in the agency's relocation plan, which promises decent housing for all and permanent subsi- dies for some. Plainly, the trial court resolved conflicts in the evidence in favor of the redevelopment plan. The court's findings are adequately supported by compe- tent, substantial evidence, and must be affirmed. V. The final contention urged on the Court is that the proposed bonds are payable from ad valorem taxation within the meaning of article VII, section 12, and therefore may not be issued without vote of the elec- torates of Dade County and the City of Miami Beach. As previously explained above in the factual statement of this opinion, section 163.387(2), Florida Statutes (1977), provides that each local government entity with taxing authority in the redevelopment area, except school districts, "shall annually appropriate" to the redevelopment trust fund an amount not less than the amount of tax increment revenue that accrues to the local government. Section I63.387(1) defines ad valorem tax increment. It is the difference between the amount of ad valorem taxes levied by those local governments each year and the amount that would have been produced by the same levy on the assessed value of taxable property in the redevelopment area before the implementation of the plan. Thus the tax increment revenues are *894 measured by the increase in proceeds brought about by the increased value of the property, to be achieved by the improvements made under the redevelopment plan. © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 392 So.2d 875 (Cite as: 392 So.2d 875) Under article VII, section 12 of the Florida Con- stitution, the power of "(c) ounties, school districts, municipalities, special districts and local governmen- tal bodies with taxing powers" to borrow for capital projects, for terms in excess of twelve months, is conditioned, where the obligations are to be "payable from ad valorem taxation," upon approval of the eli- gible voters by referendum. Appellants argue that the proposed bonds are "payable from ad valorem taxa- tion" because the required contributions of the county and the city to the repayment fund will be derived from their tax levies on the real property in the area. 111 The Agency argues, on the other hand, that proposed financing plan does not come within the referendum requirement because: the statute arid the bond resolutions declare that there is no pledge of the county and city ad valorem taxing power; the statute provides that the bondholders" lien attaches only after the revenues are deposited in the trust fund; and the ad valorem tax is not necessarily deposited directly into the fund but is merely the measure of the contributions the county and city will make annually from its gen- eral operating revenues until the bonds have been paid. They are not required to be made from ad val- orem tax revenues at all, the appellee argues, but may be derived from any available funds. The Agency contends in effect that where there is no direct pledge of ad valorem tax revenues, but merely a requirement of an annual appropriation from any available funds, the referendum provision of article VII, section 12 is not involved. We agree with this view, in explanation of which we turn to the precedents interpreting the constitutional provision and its predecessor. Much of the judicial treatment of the referendum requirement is found in cases decided by this Court under article IX, section 6 of the Constitution of 1885, the predecessor provision. That section provided in part that: Countries, Districts, or Municipalities of the State of Florida shall have power to issue bonds only after the same shall have been approved by a majority of the votes cast in an election in which a majority of the freeholders who are qualified electors residing in such Counties, Districts, or Municipalities shall participate, to be held in the manner to be prescribed by law.... Page 20 This provision was adopted by the people in 1930. See S.J.Res. 26, Laws of Fla. (1929). "Its outstanding purpose," the Court said of the amendment early in its history, was to lay a restraint only on the spendthrift tendencies of political subdivisions to load the fu- ture with obligations to pay for things the present desires, but cannot justly pay for as they go, thereby necessitating the involvement of the public credit in some form of funding or borrowing operation by which money can be realized on credit beyond the present means of payment so as to become available for disbursement in paying for considerations re- ceived in the present to be discharged out of public revenues anticipated to be realized or raised in the future. Leon County v, State 122 Fia. 505, 514, 165 So. 666, 669 6 . 1121 Two preliminary observations are in order. First, we observe that the recitals in the statute and in the bond resolutions, to the effect that the bonds shall not be deemed a pledge of the ad valorem taxing power and therefore do not require a referendum, are not conclusive of the issue in this proceeding. The legislative finding of constitutionality is presump- tively correct, but this Court must disapprove it if it is clearly erroneous. The Court looks at the substance and not the form of the proposed bonds. See e. g., State v. City of Key West, 153 Fla. 226, 14 So.2d 707 (1943); Clover Leaf, Inc. v. City of Jacksonville, 145 Fla, 341, 199 So. 923 (1941). 11311141 However, once bonds are validated, and if appealed, the validation is *895 affirmed, then rec- itations of constitutionality and satisfaction of condi- tions precedent are binding on the issuing authority, which will not be heard to question such matters in actions brought for the enforcement of bondholders' rights. See Jefferson County v, Lewis, 20 Fla. 980 (1884). Where bonds are unconstitutional and void ab initio, and the purchaser takes them with knowledge of their potential invalidity, the recitals of constitution- ality will not be held binding on the issuer Nuveen v. City of Quinc_y, 115 Fla. 510, 156 So. 153 (1934), but after validation, the courts will protect even the pur- chasers of unconstitutional bonds. See Columbia County v. King, 13 Fla. 451 (1870); Patterson, Legal Aspects of Florida Municipal Bond Financing, 6 U.Fla,L.Rev. 287, 289 (1953) (hereinafter cited as 2013 Thomson Reuters. No Claim to Orig, US Gov. Works. Submitted into the public record in connection with items 0I.3 on 02-14-13 Todd B. Hannon 392 So.2d 875 (Cite as: 392 So.2d 875) Patterson). 115i Second, when a government agency with taxing power is authorized by statute to levy a tax and to appropriate the proceeds thereof to the repayment of bonds, the statutory authority to levy the tax "may be regarded as mandatory and not merely permissive." State ex rel. Babson v. City of Sebring, 115 Fla. 176, 181, 155 So. 669, 672 (1934). After bonds have been issued, validated, and sold, the statutory authority to devote governmental revenues to the retirement of bonds becomes a contractual duty to do so. State ex rel. Dos Amigos, Inc. v. Lehman, 100 Fla, 1313, 131 So. 533 (1930); Klemm v. Davenport, 100 Fla. 627, 129 So. 904 (1930). The reason for the rule is patent. The state has authorized the city of Sanford to issue its bonds and exercise its power of taxation to an extent necessary to pay the principal and interest thereon when they mature. When issued and negotiated they become a contract between the city and the holder. The power to tax is the very essence of the bonds. In the ab- sence of a legal right to enforce this power, they would be worthless. Under the law of this state the property in the municipality is not bound in like manner, as the property of an individual under a mortgage for their payment, but, when issued under such acts as those brought in question, the act itself becomes a part of the contract, protected from in- vasion by the federal Constitution (article 1, s 10), as much so as if it had been written at length on the face of the bond. Such statutes or the rights of bondholders acquired under them cannot be re- pealed or abrogated by any law of the state statutory or constitutional, until the obligations incurred un- der them are paid and discharged according to their terms. State ex rel. Dos Amigos, Inc. v. Lehman, 100 Fla. at 1325, 131 So. at 538. Very early in the history of the amendment, the Court began to make distinctions among types of local government financing, and held that various kinds of debts were not "bonds" for purposes of the referendum requirement. In State v. City of Miami, 113 Fla. 280, 152 So. 6 (1933), the city proposed to finance the reconditioning and expansion of its existing water supply system by issuing "water revenue certificates" to be repaid solely with revenue received from water Page 21 users. Because there was no chance that the taxing power of the city might be called upon to pay the debt, the Court reasoned, the certificates were not municipal bonds for purposes of article IX, section 6. The amendment was adopted, the Court said, in light of the long established practice of municipalities operating utilities. The practice of borrowing on the security of future revenues of an existing utility, in order to raise capital to preserve that system upon which the inhab- itants of a community have come to depend was not, the Court concluded, among the evils the amendment was designed to remedy. At first the Court limited this holding to the im- provement or expansion of an existing utility, on the theory that the public dependence and necessity were clear. E. g., Williams v. Dunnellon, 125 Fla. 114, 169 So. 631 (1936). See also State v. City of Tampa, 148 Fla. 6, 3 So.2d 484 (1941). But soon the Court began to allow bonds to be sold without referendum to fi- nance new projects as well, when it was clear that the revenue generated from user fees would be sufficient to meet the bond obligations as they *896 came due. See, e. g., State v. City of Miami, 72 So.2d 655 (Fla.1954); State v. City of Key West. 153 Fla. 226, 14 So.2d 707 (1943): Flint v. Duval County, 126 Fla. 18, 170 So. 587 (1936). Cf. State v. Board of Control, 65 So.2d 469 (Fla.1953) (state obligations were not "bonds" because they were payable solely from rev- enue to be realized from operation of facilities to be constructed with the borrowed capital). See also Pat- terson, supra, at 317. In contrast to the early State v. City of Miami, supra, was the case of Boykin v. Town of River Junc- tion, 121 Fla. 902. 164 So. 558 (1935). There the Court disapproved the issuance of "revenue certifi- cates" proposed for the purpose of financing the ex- pansion of an existing public utility, where the scheme contemplated not only repayment from the revenues of the utility but also a mortgage on the physical assets themselves. The possibility of loss of the assets through foreclosure, the Court concluded, might compel the exercise of the taxing power to pay the obligations should the revenues of the system prove insufficient. Therefore the plan violated article IX, section 6. Similarly, in Broward Port Authority v. State, 129 Fla. 73, 175 So. 796 (1937), the Court ap- proved the lower court judgment which had validated a plan to borrow for improvement of port facilities, where the port revenues were pledged to repayment, 0 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 392 So.2d 875 (Cite as: 392 So.2d 875) while disapproving a mortgage the issuing authority had given as further security. To approve the mort- gage, the Court reasoned, would have been to approve a debt for payment of which the local authority could be coerced into levying a tax. In another series of cases, the Court designated another category of local government borrowing as outside the meaning of the word "bonds" for purposes of the referendum requirement. It developed that counties could levy a legislatively authorized ad val- orem "building tax" for essential government build- ings, such as courthouses and jails, and pledge the revenues to the payment of obligations incurred to finance the construction of such projects, without referendum. This development is illustrated by the contrast between Leon County v. State. 122 Fla. 505, 165 So. 666 (1936), and subsequent cases. There the Court said: Any contractual device for the present funding of tax revenues contemplated to be raised or made available for reimbursement in future years, con- trived to be issued as an enforceable legal security to the obligee, or his assignee, by means of which such obligee or his assignee will acquire a legal or equi- table right to coerce by judicial processes the re- payment of a sum of money advanced on the strength thereof, together with interest for the hire of the amount advanced, however calculated or pro- vided to be paid upon the sum so involved, is in contemplation of amended section 6 of article 9 of the Constitution of Florida a "bond" and within the purview of the specific prohibitions and limitations of that section as to the issuance of "bonds." Id. at 507-508, 165 So, at 667. The Court ob- served that although the proceeds of the building tax could not be pledged without the approval of the freeholders, it would be permissible to allocate the proceeds of the tax to a building program each year as and when they were collected. In Tapers v, Pichard. 124 Fla. 549, 169 So. 39 (1936), the Court referred to the observation in Leon County v. State that the proceeds of the legislatively authorized building tax could be paid in installments, as and when collected, for the construction of a building essential to the conduct of county business. Tapers involved the very same project a jail for Leon County. Patterson, supra, at 307. The Court reasoned Page 22 that if the proceeds of the tax could be allocated in installments as and when collected, there was nothing in the constitution to prevent a county from issuing certificates of payment to a contractor for construction of a necessary building. The Court concluded that article IX, section 6 was not intended to apply to "contracts for current governmental needs when ex- ecuted in due course of authorized budgetary re- quirements." Tapers v. Pichard 124 Fla. at 553 169 So. at 40. Thus the "certificates," although they *897 were clearly issued to achieve a present funding of future anticipated ad valorem tax revenues, were held to be outside the intent of the referendum requirement. This doctrine was made clear in Posey v. Wakulla County. 148 Fla. 115, 3 So.2d 799 (1941), where the Court, citing Tapers said: "(t)he construction of a county courthouse is an essential governmental re- quirement of the county and certificates of indebted- ness for that purpose payable from budgetary re- quirements in due course of law do not require an approving vote of the freeholders." Posey v. Wakulla County, 148 Fla. at 119, 3 So.2d at 801. See generally Patterson, supra, at 306-310. This permissive view of the practice of allowing counties to realize a present funding of anticipated ad valorem tax revenues for the purpose of constructing county buildings became settled law. It was based on the proposition that the 1930 amendment was "not intended to inhibit governmental entities from enter- ing into contracts for current governmental needs and requirements when done in due course of then au- thorized budgetary administration of public affairs." E. g., State v. County of Palm Beach, 89 So.2d 607, 609 (Fla.1956). This Court very early held that article IX, section 6 of the Constitution of 1885 did not require a refer- endum when bonds were proposed to be sold to fi- nance construction of a public works project that would be self-liquidating, that is, would generate revenue sufficient to repay the bonds without any supplemental allocations of tax revenues to that pur- pose. The Court later expanded this rule to allow the pledging of various sources of local government rev- enue other than ad valorem taxes. For example, in State v. City 'inter Park,160 Fla. 330, 34 So.2d 740 (1948), the Court approved the issuance of bonds for sewer system improvements, payable from the sewer system revenues and from C 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items D1.3 on 02-14-13 Todd B. Hannon 392 So.2d 875 (Cite as: 392 So.2d 875) revenues of a municipal utilities service tax, without referendum. Even though municipal resources other than the revenues of the system being financed were pledged, the obligation was still a limited one, so that the Court could conclude that there was no general obligation being created. Of special significance was the fact that there was created no power in bondhold- ers to compel exercise of the authority to levy ad val- orem taxes. In Schmeller v. City of Fort Lauderdale, 38 So.2d 36 (Fla.1948), a statute authorized the bonded financing of recreational facilities and the pledge of the revenues to be created by them supple- mented by "any other available funds." The city pledged the proceeds of its utilities service tax. Be- cause the pledge was of a limited and certain revenue source the Court held there was no involvement of the taxing power within the meaning of the constitution. The Court again approved a pledge of municipal util- ities service tax revenues without referendum in State v. City of Melbourne, 93 So.2d 371 (F1a.1957). Other definite and limited sources of municipal revenue have been held properly pledged to the re- tirement of bonds without referendum, such as fran- chise taxes paid by privately owned utilities, Miller v. City of St. Augustine, 97 So.2d 256 (F1a.1957); State v. City of Miami, 76 So.2d 294 (F1a.1954), and the proceeds from state cigarette taxes collected in the municipality. Welker v. State, 93 So.2d 591 (Fla.1957); State v. City of Coral Gables, 72 So.2d 48 (Fla.1954). In Klein v. City of New Smyrna Beach, 152 So.2d 466 (Fla.1963), the Court summed up the rule and rationale of these cases: As a general rule, we have said that if proposed certificates are secured by a pledge of ad valorem taxes, they are "bonds" and must be approved by the freeholders as required by Section 6, Article IX of the Florida Constitution, F.S.A. but if they are se- cured by excise taxes, special assessments or charges against the facility constructed with the net proceeds thereof, they are certificates that do not have to be approved by the freeholders. Id. at 467. On the other hand, when a project is financed by the sale of bonds to be repaid with revenues produced by the project supplemented by governmental funds derived *898 from ad valorem taxation, an approving vote of the electorate is required. Page 23 (I)n no instance has this Court upheld the pledge of gross revenue of a facility coupled with a supporting pledge of ad valorem taxes. When gross revenues have been pledged with collateral support for oper- ating the facility, the supporting revenues pledged have always been derived from sources other than ad valorem levies. State v. Halifax Hospital District, 159 So.2d 231, 233 (FIa,1963). The mere possibility, however, that the pledge of some well defined, stable local gov- ernment source will have an incidental effect on the use of revenues raised by ad valorem taxes "does not subject the bonds or revenue certificates to the con- stitutional requirement." Rianhard v. Port of Palm Beach District, 186 So.2d 503, 506 (F1a.1966). 1161 Against this background, the constitution was revised in 1968 to alter the language of the ref- erendum requirement for local bonds. That part of the revision which added the words "certificates of in- debtedness" and "any form of tax anticipation certif- icates" was found by the Court to have expressly rejected the judicial distinction among categories of public obligations. State v. County of Dade, 234 So.2d 651 (Fla.1970). More significantly here, there was added to the provision the qualifying words "payable from ad valorem taxation." Art. Vil. s 12, FIa.Const. This limitation on the scope of the refer- endum requirement seems to have been a ratification of prior judicial interpretation, and the law has con- tinued to say that local revenue sources other than ad valorem taxation may be pledged without referendum. See, e. g., State v. Orange County, 281 So.2d 310 (Fla.1973); State v. City of Miami Beach, 234 So.2d 103 (F1a.1970). 1.1 71 The bonds in the instant case are payable from a trust fund, and the fund will receive revenue from two sources. One source is the money the Agency receives from sales, leases, and charges for the use of, redeveloped property. This source is analogous to revenues generated by a utility or facil- ity. The other source is the money to be contributed each year by the county and city, measured by the tax increment. The source of this revenue is not limited to any specific governmental revenue. That the statutory duty to make the annual contributions would become a contractual duty, part of the obligation of the bonds, does not mean, however, that these bonds are payable 0 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 392 So.2d 875 (Cite as: 392 So.2d 875) from ad valorem taxation, in the constitutional sense of the term. The Agency notes that even though the money the county and city will use to make the contributions may come from ad valorem tax revenues, we have indi- cated this does not bring the bonds within the refer- endum requirement. Tucker v. Underdown, 356 So.2d 251 (F1a.1978). In that case, county bonds previously issued without referendum to finance a solid waste disposal system had been validated as payable from user charges, giving bondholders no power to compel the levy of ad valorem taxes for operating expenses or debt service. The subsequent lawsuit concerned whether the county had violated the covenants of the earlier bond issue by levying and spending ad valorem taxes for these purposes. The Court held that it had not. 1181Tucker v. Underdown supports the argument that there is nothing in the constitution to prevent a county or city from using ad valorem tax revenues where they are required to compute and set aside a prescribed amount, when available, for a discreet purpose. The purpose of the constitutional limitation is unaffected by the legal commitment; the taxing power of the governmental units is unimpaired. What is critical to the constitutionality of the bonds is that, after the sale of bonds, a bondholder would have no right, if the redevelopment trust fund were insufficient to meet the bond obligations and the available re- sources of the county or city were insufficient to allow for the promised contributions, to compel by judicial action the levy of ad valorem taxation. Under the statute authorizing this bond financing the governing bodies are not obliged nor can they be compelled to levy any ad valorem taxes in any *899 year. The only obligation is to appropriate a sum equal to any tax increment generated in a particular year from the ordinary, general levy of ad valorem taxes otherwise made in the city and county that year. Issuance of these bonds without approval of the voters of Dade County and the City of Miami Beach, consequently, does not transgress article VII. section 12. All of the objections raised by the state have been considered. We hold that these bonds pass legal muster on all counts, and we therefore affirm the judgment of validation. It is so ordered. Page 24 SUNDBERG, C. J., and ADKINS, OVERTON and ENGLAND, JJ., concur. ALDERMAN, J., concurs in result only. BOYD, J., concurs in part and dissents in part with an opinion. McDONALD, J., dissents. BOYD, Justice, concurring in part and dissenting in part. I concur in all portions of the majority opinion except the holding that the bonds, which are payable over a term of years from ad valorem taxation, may be issued without approval of the voters of Dade County arid the City of Miami Beach. As a former long-time resident and commissioner of Dade County I am uniquely aware of the blighted condition of south Miami Beach and the need for renewal. The Florida Constitution, however, requires that the electorates of the local governments whose revenues are being pledged to the payment of the bonds give their ap- proval. Article VII, section 12, Flonda Constitution, provides: Local bonds. Counties, school districts, munici- palities, special districts and local governmental bodies with taxing powers may issue bonds, certif- icates of indebtedness or any form of tax anticipa- tion certificates, payable from ad valorem taxation and maturing more than twelve months after issu- ance only: (a) to finance or refinance capital projects au- thorized by law and only when approved by vote of the electors who are owners of freeholds therein not wholly exempt from taxation; or (b) to refund outstanding bonds arid interest and redemption premium thereon at a lower net average interest cost rate. The 1885 Constitution contained a similar re- striction on the power of local governments to issue bonds. Art. IX, s 6, Fla.Const. (1885). During the Great Depression, this Court carved out exceptions to the restriction by declaring certain kinds of county indebtedness not to be "bonds." Posey v. Wakulla County, 148 Fla. 115, 3 So.2d 799 (1941): Tapers v. Pichard, 124 Fla. 549, 169 So. 39 (1936). In doing so, the Court departed from its earlier practice of enforc- 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 392 So.2d 875 (Cite as: 392 So.2d 875) ing the plain language of the constitution on this is- sue. Leon County v. State, 122 Fla. 505, 165 So. 666 (1936). The 1885 constitution had referred only to "bonds." When the people revised the referendum requirement for local bonds in 1968, they spoke out clearly against the Court's carved -out exceptions. They changed the language to its present form, ap- plying the restriction to "bonds, certificates of in- debtedness, or any form of tax anticipation certifi- cates, payable from ad valorem taxation...." In State v. County of Dade, 234 So.2d 651 (FIa.1970), this Court concluded that the people's intent was that the restric- tive language be applied without exception. The Court rejected a bond issue that was. like the present one, payable over a term of years from ad valorem taxation without referendum. I would hold that the bonds are payable from ad valorem taxation and therefore must be approved by the electorates of the taxing authorities in question. Article VII, section 12 of the Florida Constitution requires a referendum. The Court's opinion provides no authority for or even any coherent explanation of its approval of these bond issues. As the majority opinion correctly points out, we must look at the substance, and not the form, of what the local taxing authorities*900 are undertaking; we must carefully analyze the undertaking and not be deterred by the confusing and seemingly sophisticated language of the statute and the bond resolutions. After this Court's approval of the validation de- cree, the statutory provision directing that the county and the city make annual contributions until the re- tirement of the bonds will become a mandatory, con- tractual duty to make the contributions. A purchaser of any of the bonds will be able to enforce that duty by judicial action. The majority fails to recognize that the promised annual contributions based on the "tax increment revenue" constitute a pledge by the county and city of their general revenue. Such general obligation bonds are by definition "payable from ad valorem taxation." If the scheme of the redevelopment project were to repay the debt from the revenue realized from sales, leases, and fees and charges imposed by the Agency, Page 25 there would, by long established authority, be no problem. If the project revenue were to be supple- mented with funds from a non -ad valorem revenue source, there would be no problem. But the statute authorizes the county and the city to pledge annual contributions, measured by the accrued tax increment revenue, from their general operating budgets. The general operating revenues of cities and counties in Florida are primarily drawn from ad valorem taxation. Tucker v. Underdown, 356 So.2d 251 (FIa.1978) does not support the approval of these bonds, In that case the issue was whether a county's action in ap- propriating, as a discretionary matter. revenues from its general fund to the retirement of bonds that had previously been ruled valid because ad valorem rev- enues were not pledged to them, violated any promises to bondholders or taxpayers. Here the city and the county will have no discretion; they will be required to annually contribute to the retirement of the bonds. The proponents of this plan, as well as the legis- lators who have authorized this kind of plan, seem to think that the improvements wrought by redevelop- ment will produce a tremendous windfall of new revenue for Dade County and the City of Miami Beach, and that this new, unencumbered revenue can be pledged to the repayment of the bonds with little or no effect on the other taxpayers of the county and the city. The new development in the area, however, will give rise to new demands for local government ser- vices which will, I predict, far outstrip the services now provided to the area. There will be new and in- creased need for building inspection, police and fire protection, street and park maintenance, and other government services. The city and county will be providing new and increased services to the area, while also being obligated to contribute to the trust fund (for the benefit of bondholders) an amount equal to any increased tax revenue realized in the redevel- opment area. If, after the sales of the bonds and the accrual of the tax increment revenue, the redevelopment trust fund were to contain insufficient money to pay the bonds, and the commitments and resources of the county or city were such that they might choose not to make the required contributions, a bondholder would have the right to compel by judicial action the levy of an ad valorem tax sufficient to raise the revenue to make the promised contributions. This tax could be 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items Dt.3 on 02-14-13 Todd B. Hannon 392 So 2d 875 (Cite as: 392 So.2d 875) levied upon all taxable property in the city and the county. I dissent from the judgment of the Court which, in my view, annihilates a constitutional restriction that was designed to keep local officials from plunging their taxpayers into debt without their approval. Fla., 1980. State v, Miami Beach Redevelopment Agency 392 So.2d 875 END OF DOCUMENT 0 2013 Thomson Reuters, No Claim to Orig. US Gov. Works, Page 26 Submitted into the public record in connection with items oi.3 on 02-14-13 Todd B. Hannon Westtaw, 246 So.2d 737 (Cite as: 246 So.2d 737) Supreme Court of Florida. Marvin I. BANNON and Lillian M. Bannon, his wife. Appellants, v. PORT OF PALM BEACH DISTRICT, and Peanut Island Properties, Inc., Appellees. No. 39374. March 31, 1971. Class action by taxpayers against port district and private corporation alleging that district leased prop- erty it owned which did not constitute a 'port facility' to corporation for private purpose in violation of its statutory grant of powers. The corporation counter- claimed for declaration that land did constitute a 'port facility' and that the district had statutory and organic authority to make the lease. The Circuit Court for Palm Beach County, James R. Stewart, Jr., J., found that land involved was a 'port facility' and that the lease was valid, and plaintiffs appealed. The Supreme Court, Roberts, C.J. held that port district's artificial island that was created by dumping spoil occasioned by dredging inlet and which was used primarily as undeveloped recreational facility, public landing, and anchorage, and also served as windscreen to protect port terminals from adverse weather, was 'port facil- ity' as defined by statutes, and thus was properly subject to being leased for public or private purposes as governing body of district determined was in best interests of the port. Affirmed. West Headnotes Lil Municipal Corporations 268 c722 268 Municipal Corporations 268X1 Use and Regulation of Public Places, Property, and Works 268X1(C) Public Buildings, Parks, and Other Public Places and Property 268k722 k, Grants of Rights to Use Public Property in General. Most Cited Cases Page 1 Port district's artificial island that was created by dumping spoil occasioned by dredging inlet and which was used primarily as undeveloped recreational facil- ity, public landing, and anchorage, and also served as windscreen to protect port terminals from adverse weather, was "port facility" as defined by statutes, and thus was properly subject to being leased for public or private purposes as governing body of district deter- mined was in best interests of the port. F.S.A. § 315.02(6). gi Municipal Corporations 268 '1€=`722 268 Municipal Corporations 268XI Use and Regulation of Public Places, Property, and Works 268X1(C) Public Buildings, Parks, and Other Public Places and Property 268k722 k. Grants of Rights to Use Public Property in General. Most Cited Cases Port district had power to lease its artificial island to private corporation for private development at no public expense. F.S.A. §§ 315.03(9, 14), 315.14, 3 i5. i5: Sp.Acts 1915, c. 7081, § 1 et seq. Di Municipal Corporations 268 te---"870 268 Municipal Corporations 268X1I1 Fiscal Matters 268XIII(A) Power to Incur Indebtedness and Expenditures 268k870 k. Limitation on Use of Funds or Credit in General. Most Cited Cases Leasing by port district of its artificial island to private corporation for development at private ex- pense did not violate constitutional and statutory pro- hibition against lending of credit of the state for pri- vate purpose where no bonded indebtedness or mon- etary obligation of any kind attached to port district as result of lease, district did not become joint owner or stockholder of corporation, and it was not obligated in any manner to encumber its credit to advantage of corporation. F.S.A. §§ 315.03(9), 315.14: F.S.A.Const. art. 7, § 10. 0 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items D1.3 on 02-14-13 Todd B. Hannon 246 So.2d 737 (Cite as: 246 So.2d 737) al States 360 €=119 360 States 360IV Fiscal Management, Public Debt, and Se- curities 360k119 k. Limitation of Use of Funds or Credit. Most Cited Cases (Formerly 360k19) Article of State Constitution relating to prohibi- tion against credit of state being pledged or lent acts to protect public funds and resources from being ex- ploited in assisting or promoting private ventures when public would be at most only incidentally ben- efited. F.S.A.Const. art. 7, § 10, *737 James S. Robinson, of Sullivan & Robinson, West Palm Beach. for appellants. Douglas C. Fulton, of Burns & Weber, West Palm Beach, for Port of Palm Beach District. Peter Van Andel, of Gunster, Yoakley, Criser, Stewart & Hersey, Palm Beach, for Peanut Island Properties, Inc. *738 Joseph C. Jacobs and Ben H. Wilkinson, of Ervin, Pennington, Varn & Jacobs, Tallahassee, for Save Peanut Island, Inc„ amicus curiae. ROBERTS, Chief Justice. We have for review on direct appeal a judgment of the trial court validating a long term lease between the Port of Palm Beach District and Peanut Island Properties, Inc, in which, inter alia, that court con- strued a controlling provision of the Constitution and held specifically that the lease and the development plan do not violate Sections 5, 7 and 10 of Article IX, Florida Constitution of 1885 as amended, and do not violate Sections 9 and 10 of Article VII. 1968 revision of the Florida Constitution, F.S.A. Appellants appearing below as individuals and on behalf of the taxpayers of the Port of Palm Beach District instituted the litigation contending that the Port had violated its statutory grant of powers as set forth in s 315.03, Florida Statutes, F.S.A. as well as the sections of the Constitution above mentioned, They alleged that the Port leased property it owned but Page 2 which did not constitute a 'port facility' as defined by the statutes to a private corporation which they con- tend was for a private rather than a public purpose. Peanut Island Properties, Inc., the lessee and appellee here, denied the allegations and counterclaimed for a declaration that the land in question did constitute a 'port facility' and that the Port had statutory and or- ganic authority to make the lease. The trial, court found that the Port District had the authority by statute to lease the land in question to the tenant, that the land involved as the subject matter of the lease was a 'port facility' as defined in s 315.02(6), Florida Statutes, F.S.A., that the Port District by en- tering the lease did not appropriate money for or lend its credit to or become a joint owner with or levy taxes for the benefit of the lessee, and that the lease is valid and binding between the parties. Being aggrieved by the judgment, the appellants bring this appeal and pose questions: 1. Is Peanut Island a 'port facility' as defined in the applicable statutes or acts? 2. Does the Port have the authority under the ap- plicable special and general acts of the State of Florida to lease the land for the purposes contained in the lease? 3. Does the proposed implementation of the lease violate the constitutional and statutory prohibitions against lending the credit of the State of Florida for a private purpose? We shall deal with them in the order in which they are presented. [I[ Appellants contend that although the Port District has owned a portion of the island for a long time, the property has never been utilized for any port purposes and cannot quality as a 'port facility.' We do not agree. Section 315.02(6). Florida Statutes, F.S.A. defines a port facility as follows: 'The term 'port facilities' shall mean and shall include harbor, shipping and port facilities and im- provements of every kind, nature and description, including (hut without limitation) channels, turning basins, jetties, breakwaters, public landings, wharves, © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 246 So.2d 737 (Cite as: 246 So.2d 737) docks, markets. parks, recreational facilities, struc- tures, buildings, piers, storage facilities, public buildings and plazas, anchorages, utilities, bridges, tunnels, roads. causeways and any and all property and facilities necessary or useful in connection with the foregoing, and any one or more or any combination thereof and any extension, addition, betterment or improvement of any thereof.' Peanut Island is an artificial island that was cre- ated by dumping the spoil occasioned by dredging the Palm Beach Inlet. The Port District's acquisition be- gan subsequent*739 to a resolution of the Port Com- missioners in 1921 and was completed in 1950. The purpose of the Port District is indicated in the initial purchase resolution which. inter alia, said: 'Whereas, the said Island is capable of being im- proved by the erection of docks and wharves and the construction of buildings on said island for stores, warehouses, quarantine or other purposes; and 'Whereas, the Lake Worth Inlet District can better maintain an inlet between the waters of the Atlantic Ocean, better attain the objects of the creation of the said Inlet District and contribute more to the mainte- nance of the health of the inhabitants of the Territory embraced in the said District and the welfare of said District if control and ownership of land not owned by the State of Florida and created through the dredging operations of the said District be vested in the said Lake Worth Inlet District.' It appears from the record here that since the time of purchase, the portion of Peanut Island owned by the Port District has been used primarily as an undevel- oped recreation facility, a public landing, and an- chorage. It also serves as a windscreen to protect the port terminals from adverse weather. The evidence clearly indicates that the portion of the island owned by the District is a 'port facility' as defined by the statutes, and being so, it is properly subject to being leased for public or private purposes as the governing body of the District determines is in the best interest of the Port. RI We next consider the question of whether or not the Authority had the power to lease the land for a private development at no public expense. Section 315,03(9) of the Florida Statutes. F.S,A., which in enumerating the powers of ports, states the following: Page 3 'To sell at public or private sale or Lease for public or private purposes all or any portion of any port facilities now or hereafter owned by the unit, including any such facilities as extended, enlarged or improved, and all or any portion of any property of the unit improved, created, extended or enlarged under the authority of this law, on such terms and subject to such conditions as the governing body shall determine to be in the best interests of the unit.' (Emphasis supplied) Further. Section 315.03(14) states the following: 'To lease or rent, or contract with others for the operation of all or any part of any port facilities now or hereafter acquired, owned or constructed by the unit, on such terms and for such period or periods and subject to such conditions, as the governing body shall determine to be in the best interests of the unit.' (Emphasis supplied) Section 315.14 defines 'public purposes' as used in Chapter 315 of the Florida Statutes, as follows: 'Public purposes. -It is hereby determined and declared that each and all of the powers conferred by this law and the exercise thereof are proper public and municipal purposes.' Also, Section 315.15 states: 'Additional and alternative method. -This law shall be deemed to provide an additional and alterna- tive method for the doing of the things authorized hereby and shall be regarded as supplemental and additional to the powers conferred by any other law, either general, special or local, and shall not be re- garded as in derogation of any power now, existing.' In addition to the foregoing, we find that the Port of Palm Beach District was created by Chapter 7081, Special Acts of the Legislature, 1915, which has been supplemented and amended from time to time. Section 6, as amended, *740 Chapter 7522, Acts of 1917, states the following: * * that the Board of Commissioners of the Lake Worth Inlet District (original name) be and It is hereby authorized and empowered for and on behalf of the said Lake Worth Inlet District, to use, hold, oc- cupy, control, develop, lease or make any other dis- position of any property to be acquired for and on behalf of the said Lake Worth Inlet District under and by virtue of this Act, which said Board shall deem advisable and for the best interests of the said Lake © 2013 Thomson Reuters. No Claim to Orig. US Gov, Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 246 So.2d 737 (Cite as: 246 So.2d 737) Worth Inlet District.' (Emphasis supplied) Section 21(N) of Chapter 59-1701, Special Acts of 1959, and relating to the District among other things provides: 'The district shall have power to contract with any person, private or public corporation, the state of Florida, or any agency, instrumentality or county, municipality, political subdivision thereof, or any agency, instrumentality or corporation of or created by the United States of America, With respect to such port facilities, or any port improvements or any parts thereof, and shall also have power to accept and re- ceive grants or loans from the same and in connection with any such contract, grant or loan, to stipulate and agree to such covenants. terms and conditions as the governing body of the district shall deem appropriate.' (Emphasis supplied) In view of the foregoing, it is obvious that the Authority acted within the orbit of its power in making the lease. 131[41 We finally reach the question of whether or not the leasing of the property to a private concern for development at private expense violates the constitu- tional and statutory prohibition against the lending of the credit of the State for a private purpose, or whether or not the overall plan is prohibited by the organic law of the State. It is submitted that Section 315.03(9), Florida Statutes, F.S.A., is not unconstitutional as it relates to the leasing of a port facility to a private party so long as the private entity is performing a public function or serving a public purpose as an integral part of an overall plan. The decisions of this Court relied upon by the appellants in State v. Jacksonville Port Authority, 204 So.2d 881 (lla.1967) and State v. County of Dade, 210 So.2d 200 (F1a.1968) might give some comfort to appellants in their argument if, as in both those cases, the project herein involved the is- suance of revenue bonds or some other form of public financing to finance the construction of a facility for the exclusive use of a private concern, but, in the present instance, we are faced with no such financing scheme. No bonded indebtedness or monetary obli- gation of any kind attached to the Port District as a result of the lease, Also involved is the basic issue of whether a long term lease of property owned by the Port District to a private concern is, per se, a violation of Article VII, Section 10, Florida Constitution of 1968, relating to the prohibition against the credit of Page 4 the State being pledged or lent. It is suggested by appellants that due to the lack of a paramount public purpose being served, the lease sub judice is an en- cumbrance upon public property for the benefit of a private concern to the extent of creating an in fact' unconstitutional joinder of public and private owner- ship and responsibility for the venture planned. We do not find it necessary to determine whether the pur- poses to be served by the development of the leased property are primarily public or private in nature. The District in leasing the property in question was exer- cising a power conferred on it by the 1959 Port Facil- ities Financing Law. Section 315.14 of that law de- termines and declares, '* * * that each and all of the powers conferred by this law and the exercise thereof are proper public and municipal purposes.Appellants fail to demonstrate otherwise. The District, by virtue of the lease agreement, did not become a joint owner or stockholder of the private *741 tenant, nor did it lend. obligate or in any manner encumber its credit to the advantage of the tenant. Contrary to the allegations of appellants, the lease does not operate to guarantee that the tenant will inherit the `tax-free' status our Legislature has bestowed upon property held by the Port District. The District's participation in the trans- action is limited to that of a lessor and does not involve any responsibility for the financing, promotion or development of the proposed project. We agree with appellants' contention that Section 10. Article VII, Florida Constitution of 1968, acts to protect public funds and resources from being exploited in assisting or promoting private ventures when the public would he at most only incidentally benefited. The rationale of this constitutional dictate was examined in depth in Bailey v. City of Tampa, 92 Fla. 1030, 1 1 1 So. 119 (1926): 'The reason for this amendment was that, during the years immediately preceding its adoption, the state and many of its counties, cities, and towns had by legislative enactment become stockholders or bond- holders in, and had in other ways loaned their credit to, and had become interested in the organization and operation of, railroads, banks, and other commercial institutions. Many of these institutions were poorly managed, and either failed or became heavily in- volved, and, as a result, the state, counties, and cities interested in them became responsible for their debts and other obligations. * * * Hence the amendment, the essence of which was to restrict the activities and functions of the state, county, and municipality to that of government, and forbid their engaging directly or © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 246 So.2d 737 (Cite as: 246 So.2d 737) indirectly in commercial enterprises. In the case sub judice, the District has no financial responsibility and if all failed for the corporate tenant, the District would not bear any responsibility or ob- ligation to the creditors nor would its ownership of the land be committed for such. Its interest and credit remain free from attachment and neither the spirit nor the letter of Article VII, Section 1, Florida Constitu- tion of 1968 has been violated. We have carefully examined the decree of the able trial judge and finding it to be without error, the judgment is Affirmed. CARLTON, ADKINS and BOYD, JJ., and REVELS, Circuit Judge, concur. Fla. 1971, Bannon v. Port of Palm Beach Dist. 246 So.2d 737 END OF DOCUMENT Page 5 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Westlam 568 So.2d 914, 15 Fla. L. Weekly S535 (Cite as: 568 So.2d 914) Supreme Court of Florida. Patricia THORNBER. et al., Petitioners, V . CITY OF FORT WALTON BEACH, Respondent. No. 74494. Oct. 1 1, 1990. City council members brought action against city for reimbursement of attorney's fees incurred while defending themselves against various lawsuits arising from dismissal of city officials. The Circuit Court, Okaloosa County, Erwin Fleet, J., awarded portion of claimed fees, and appeal was taken. The District Court of Appeal affirmed in part and reversed in part, 544 So.2d 230. On review, the Supreme Court. McDonald, J., held that: (1) city council memberssuccessful action to enjoin recall petition arose out of perfor- mance of their official duties and served public pur- pose, entitling members, under common law, to re- imbursement of attorney's fees from city; (2) statute governing awards of attorney's fees to public officials is not intended to replace common-law remedy com- pletely, and is not exclusive mechanism authorizing award of attorney's fees to public officials defending against litigation arising from performance of their public duties; and (3) council members were prevail- ing parties entitled to reimbursement for attorney's fees in civil rights action brought by police chief after members voted to discharge him. part. Decision approved in part and disapproved in West Headnotes al Officers and Public Employees 283 €.--'101 283 Officers and Public Employees 283111 Rights, Powers, Duties, and Liabilities 283k93 Compensation and Fees 283k101 k. Allowance and recovery compensation. Most Cited Cases Page 1 curred while defending themselves against litigation arising from performance of their official duties while serving public purpose arises independent of statute, ordinance, or charter. f_2] Officers and Public Employees 283 G>101 283 Officers and Public Employees 283111 Rights, Powers, Duties, and Liabilities 283k93 Compensation and Fees 283k101 k. Allowance and recovery of compensation. Most Cited Cases For public officials to be entitled to representation at public expense, litigation must arise out of or in connection with performance of their official duties and serve public purpose. 01 Municipal Corporations 268 C163 268 Municipal Corporations 268V Officers, Agents, and Employees 268Vi A) Municipal Officers in General 268k161 Compensation 268k163 k. Reimbursement of expend- itures. Most Cited Cases City council members' successful action to enjoin recall petition arose out of performance of their offi- cial duties and served public purpose, entitling mem- bers, under common law, to reimbursement of attor- ney fees from city; recall petition was based on alleged malfeasance of members in voting in favor of resolu- tions effectively dismissing city manager and police chief, and members' action served public interest of insuring that recall petition was facially correct, alt- hough the members were not defendants. HJ Action 13 €35 13 Action 1311 Nature and Form 13k33 Statutory Remedies of 13k35 k. Cumulative or exclusive remedies. Most Cited Cases Public officials' entitlement o attorney fees in - Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 0 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. 568 So.2d 914, 15 Fla. L. Weekly S535 (Cite as: 568 So.2d 914) Statutes 361 e=3.222 361 Statutes 361VI Construction and Operation 361VI(A) General Rules of Construction 361 k222 k. Construction with reference to common or civil law, Most Cited Cases Whether statutory remedy is exclusive or merely cumulative depends upon legislative intent as mani- fested in language of statute; presumption is that no change in common law is intended unless statute is explicit and clear in that regard. 15_1 Statutes 361 C--)222 361 Statutes 36IVI Construction and Operation 36IVI(A) General Rules of Construction 361k222 k. Construction with reference common or civil law. Most Cited Cases Page 2 L7_1 Municipal Corporations 268 €163 268 Municipal Corporations 268V Officers, Agents, and Employees 268V(A) Municipal Officers in General 268k161 Compensation 268k163 k. Reimbursement of expend- itures. Most Cited Cases City council members' failure to claim attorney fees incurred in enjoining recall petition under com- mon law did not preclude recovery of attorney fees from city under common-law theory. West's F.S.A. § 111.07. al Election of Remedies 143 €3:=1 143 Election of Remedies to 143k1 k. Nature and grounds in general. Most Cited Cases Unless statute unequivocally states that it changes common law, or is so repugnant to common law that the two cannot coexist, statute will not be held to have changed common law. f_6_1 Officers and Public Employees 283 4E)101 283 Officers and Public Employees 283111 Rights, Powers, Duties, and Liabilities 283k93 Compensation and Fees 283k101 k. Allowance and recovery compensation. Most Cited Cases Statutes 361 €222 Election of Remedies 143 e---'7(1) 143 Election of Remedies 143k7 Acts Constituting Election 143k7(1) k. In general. Most Cited Cases When more than one remedy exists, but they are not inconsistent, only full satisfaction of right asserted will estop plaintiff from pursuing other consistent remedies; furthermore, if mistaken remedy is pursued, of proper remedy is not thereby waived. 361 Statutes 361VI Construction and Operation 36IVI(A) General Rules of Construction 361k222 k. Construction with reference to common or civil law, Most Cited Cases Statute governing awards of attorney's fees to public official is not intended to replace common-law remedy completely, and is not exclusive mechanism authorizing award of attorney's fees to public officials defending against litigation arising from performance of their public duties. West's F.S.A. § 111,07. 1Municipal Corporations 268 €--)163 268 Municipal Corporations 268V Officers, Agents, and Employees 268V(A) Municipal Officers in General 268k161 Compensation 268k163 k. Reimbursement of expend- itures. Most Cited Cases City council members were prevailing parties entitled to reimbursement for attorney fees incurred in civil rights action brought by police chief after mem- bers voted to discharge him; police chief voluntarily dismissed council members in their individual capac- ities with prejudice as part of settlement with city on © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 568 So.2d 914, 15 Fla. L. Weekly S535 (Cite as: 568 So.2d 914) condition that they would seek their attorney fees from city and not against him. West's F.S.A. § 111.07. fiE Costs 102 €194.48 102 Costs 102VI11 Attorney Fees 102k194.48 k. On dismissal, nonsuit, default, or settlement. Most Cited Cases In general, when plaintiff voluntarily dismisses action, defendant is prevailing party for purpose of awarding attorney's fees. fill Costs 102 €194.48 102 Costs 102VIII Attorney Fees 102k194.48 k. On dismissal, nonsuit, default, or settlement. Most Cited Cases Determination on the merits is not prerequisite to award of attorney's fees where statute provides that they will inure to prevailing party. fill Municipal Corporations 268 ej'163 268 Municipal Corporations 268V Officers, Agents, and Employees 268V(A) Municipal Officers in General 268k161 Compensation 268k163 k. Reimbursement of expend- itures. Most Cited Cases City council members who were entitled to re- imbursement from city for attorney fees incurred in challenging recall election and defending federal civil rights action were not entitled to fees incurred in their efforts to collect those fees under statute authorizing such award in connection with claims that do not raise justiciable issue; city's defense of council member's claim for fees did not completely lack justiciable issue of law or fact. West's F.S.A. § 57.105. fill Costs 102 (C194.44 102 Costs 102VIII Attorney Fees 102k194.44 k. Bad faith or meritless litigation. Page 3 Most Cited Cases Costs 102 €260(1) 102 Costs 102X On Appeal or Error 102k259 Damages and Penalties for Frivolous Appeal and Delay 102k260 Right and Grounds 102k260(1) k. In general. Most Cited Cases Purpose of statute authorizing award of attorney's fees to prevailing party in action in which there is complete absence of justiciable issue is to discourage baseless claims, stonewall defenses, and sham appeals in civil litigation by placing price tag through attor- ney's fee award on losing parties who engage in these activities. West's F.S.A. § 57.105. *915 George E. Day and Timothy I. Meade of George E. Day, P.A., Ft. Walton Beach, for petition- ers/cross-respondents. *916 James E. Moore, Bert Moore and Alice H. Murray of Moore, Kessler & Moore, Niceville, for respondent/cross-petitioner. McDONALD, Justice. We review City of Fort Walton Beach v. Grant, 544 So.2d 230 (Fla. 1st DCA 1989), based on express and direct conflict with Ferrara v. Caves, 475 So.2d 1295 (Fla. 4th DCA 1985). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We approve in part and quash in part Grant and approve Ferrara. This case involves claims by Fort Walton Beach city council members Thornber, Franklin, and Grant for reimbursement of attorney's fees expended for private representation in six different legal and ad- ministrative matters arising from their actions while council members.FNl We discuss only the council members' claim for reimbursement of attorney's fees spent in successfully enjoining a recall petition calling for their removal from office and in defending against a federal civil rights action filed against the city, the mayor, and themselves in their official and individual capacities. FN1. These legal and administrative actions 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 568 So.2d 914, 15 Fla. L. Weekly S535 (Cite as: 568 So.2d 914) each arose from the same incident. City res- idents elected a new mayor and Thornber and Franklin as city council members, who ran on a "clean up" city government platform. Prior to being sworn into office Thornber, Frank- lin, and the mayor allegedly met privately and drafted several resolutions calling for the city attorney's resignation, the city manager's dismissal, and the appointment of the mayor as acting city manager. The entire city coun- cil later passed these resolutions at a public meeting with Thornber, Franklin, and Grant, who had been elected previously and had not attended the alleged "secret" meeting, voting in favor of the resolutions. As acting city manager the mayor fired the police chief. The trial court denied the recall petition claim because the council members initiated the action and section 111.07, Florida Statutes (1981), under which they claimed entitlement to fees, only allows reim- bursement of prevailing defendants. The district court affirmed, relying on the same rationale. The council members now allege conflict with Ferrara which allowed town commissioners to recover attomey's fees expended in obtaining declaratory and injunctive relief from a recall petition based on a common law theory rather than on section 111.07. The council members also challenge the district court's affirmance of the trial court's refusal to award attorney's fees under section 57.105, Florida Statutes (1981), for the city's frivolous defense of their claim for fees arising from the federal civil rights action, Lastly, the council members claim appellate attorney's fees under section 59.46, Florida Statutes (1987). As to the federal civil rights claim, the trial court awarded attorney's fees to Grant as a prevailing de- fendant under section 111.07 but refused to award fees to Thornber and Franklin, finding that they held a private meeting which violated sunshine laws and prevented recovery. The district court affirmed the award of fees to Grant, It reversed the decision with respect to Thornber and Franklin, however, holding that the trial court improperly tried the sunshine law violation issue and that they were entitled to reim- bursement as prevailing defendants. The city now cross -petitions regarding this decision, contending that the council members did not prevail in the civil rights action by virtue of a voluntary dismissal with prejudice.FN2 Page 4 FN2. The city also cross -petitions on the district court's affirmance of the trial court's determination of the reasonable amount of fees awarded to Grant, contending that it vi- olates Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985). We find this claim to be without merit. We first address whether the council members are entitled to reimbursement of attorney's fees from the city for successfully enjoining the recall petition. For the reasons expressed in the district court's opinion, we agree that the council members cannot recover their attorney's fees expended in enjoining the recall petition from the city under section 111.07. In this case, however, our inquiry does not end at whether the council members are entitled to recover fees under section 111.07. 111121 Florida courts have long recognized that public officials are entitled to legal representation at public expense to *917 defend themselves against litigation arising from the performance of their official duties while serving a public purpose. E.g., Miller v. Carbonelli, 80 So.2d 909 (F1a.1955); Williams v. City of Miami, 42 So.2d 582 (Fla.1949); Peck v. Spencer, 26 Fla, 23. 7 So. 642 (1890); Lomelo v. City of Sun- rise, 423 So.2d 974 (Fla. 4th DCA 1982), review dismissed, 431 So.2d 988 (F1a.1983); Ellison v. Reid, 397 So.2d 352 (Fla, 1st DCA 1981). The purpose of this common law rule is to avoid the chilling effect that a denial of representation might have on public officials in performing their duties properly and dili- gently. Nuzum v. Valdes, 407 So.2d 277 (Fla. 3d DCA 1981). This entitlement to attorney's fees arises inde- pendent of statute, ordinance, or charter. Lomelo, 423 So.2d at 976. For public officials to be entitled to representation at public expense, the litigation must (1) arise out of or in connection with the performance of their official duties and (2) serve a public purpose. Chavez v, City of Tampa. 560 So.2d 1214 (Fla. 2d DCA 1990). See Lomelo; Nuzum; Markham v. De- partment of Revenue. 298 So.2d 210 (Fla. 1st DCA 1974), cert, denied, 309 So.2d 547 (F1a.1975). 3 [ In this case the council members' legal defense against the recall petition meets both of these re- quirements. The factual basis for the petition was the council members' alleged malfeasance of meeting in violation of the sunshine law and subsequently voting © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 568 So.2d 914, 15 Fla. L. Weekly S535 (Cite as: 568 So.2d 914) at a public meeting in favor of resolutions effectively dismissing the city manager and police chief.FN3 Un- questionably, the vote taken at the public meeting was within their official duties. There is a sufficient nexus between the firing of these employees and the council members' official duties to satisfy the first prong of this test. FM114 FN3. The alleged sunshine law violation is of no consequence in this case. The main thrust of the recall petition was that the council members' actions led to the wrongful firing of the city manager and the police chief. FN4, The city charter provided that the city manager served at the pleasure of the city council and could be hired or fired by ma- jority vote of the council. The charter, how- ever, placed the responsibility of the hiring and firing of the police chief with the city manager. The council membersaction in defending against the recall petition also served a public purpose and, thus, satisfied the second prong of this test. The city does not have an interest in the outcome of a recall petition because any individual, not any specific in- dividual, can be the officeholder at issue. Williams-, 42 So.2d at 582. It does have a decided interest, however, in protecting its officers from untimely and illegal recall petitions. FN5 We reject the city's contention that defending against a recall petition only serves the elected officials' personal interests in maintaining their position and is devoid of public interest. Notwith- standing that the council members have an obvious personal interest in keeping their jobs, under the cir- cumstances of this case the public has an overriding interest in ensuring the effective and efficient func- tioning of its governing body, See City of North Miami Beach v, Estes, 214 So.2d 644 (Fla.3d DCA 1968), cert. discharged, 227 So.2d 33 (Fla.1969), Duplig v, City of South Davtona, 195 So.2d 581 (Fla. 1st DCA 1967). lf a recall petition is commenced, the public has an interest —and the city has a responsibility —to ensure that the recall committee follows the proper procedures, i.e., that the recall petition is facially correct. Officials should not have to incur personal expenses to ensure that a recall committee follows the proper procedures. While this case presents an unusual twist *918 in that the council members initiated the litigation and were not actually the defendants in an Page 5 action against them, they were defending against a recall petition, albeit in an offensive posture. We agree with the district court in Ferrara that, in the "spirit" of common law principles, the unique circumstances of this case should not preclude the council members from recovering attorney's fees under the common law. FN5. After the recall petitions were filed with the city clerk, the council members filed an action in circuit court to enjoin the city clerk and supervisor of elections from processing the petitions. Thornber v. Evans, Case No. 81-1532, Circuit Court for Okaloosa County. The court found that the petitions against Thornber and Franklin were filed within one month after they were elected, in violation of § 100.361(6), FIa.Stat. (1981), which pro- hibits the filing of a recall petition until the public official has served one-fourth of his or her term of office, The petition against Grant was timely filed, because he had been elected some two years previously, but the court found the petition invalid because the recall corrunittee failed to follow other procedures set forth in the recall statute. The district court affirmed. Taylor v. Thornber, 418 So.2d 1155 (Fla. 1st DCA 1982). 141151 Thus, the only question remaining for our resolution on this matter is whether the remedy pro- vided by section 111.07 has superseded this common law remedy so as to provide the exclusive means by which public officials may recover attorney's fees from public funds for litigation arising out of their official duties. Whether a statutory remedy is exclu- sive or merely cumulative depends upon the legisla- tive intent as manifested in the language of the statute. Thc presumption is that no change in the common law is intended unless the statute is explicit and clear in that regard. City of Hialeah v. State ex rel. Morris, 136 Fla, 498, 183 So. 745 (1938); Harold Silver P.A. v. Farmers Bank & Trust Co., 498 So.2d 984 (Fla. 1st DCA 1986); Sand Key Associates, Ltd. v. Board of Trustees of Internal Improvement Trust Fund, 458 So.2d 369 (Fla. 2d DCA 1984). Unless a statute une- quivocally states that it changes the common law, or is so repugnant to the common law that the two cannot coexist, the statute will not be held to have changed the common law. Cullen v. Seaboard Air Line Rail- way, 63 Fla. 122, 58 So. 182 (1912); Peninsular Sup- 0 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items 0I.3 on 02-14-13 Todd B. Hannon 568 So.2d 914, 15 Fla. L. Weekly S535 (Cite as: 568 So.2d 914) ply Co. v. C.B. Dav Realty Inc., 423 So.2d 500 (Fla. 3d DCA 1.9821; In re Levy's Estate, 141 So.2d 803 (Fla. 2d DCA 1962). 161171181 The express language of section 111.07 makes no mention of whether it superseded the common law with regard to the circumstances under which public officials are entitled to have the state provide for their representation, so as to provide the exclusive means by which officials may recover at- torney's fees from public funds. Moreover, there is nothing in the legislative history or language of the statute by which to imply such an interpretationsR 6 Statutory abrogation by implication of an existing common law remedy, particularly if the remedy is long established, is not favored. 1 Am.Jur.2d, Actions § 77 (1962). See Tamiami Trail Tours, Inc. v. City of Tampa, 159 Fla. 287, 31 So.2d 468 (1947); Peninsular Supply Co. We agree with the district court that sec- tion 111.07 recognizes the common law but disagree that the legislature intended this statute to replace the common law completely. Thus, we hold that the stat- ute is not the exclusive mechanism authorizing an award of attorney's fees to public officials defending against litigation arising from the performance of their public duties. FN7 We therefore direct *919 the district court to remand this portion of this case to the trial court to order the city to reimburse the attorney's fees expended by the council members in defending against the recall petition.' FN6. Section 111.07 as originally enacted only authorized the state to defend any tort action brought against public officials for alleged negligence arising out of the scope of their employment. In 1979 the legislature added the majority of the language pertinent to this case by amending the statute to in- clude any civil action brought against a pub- lic official. The major cause of that amend- ment was the increase in federal civil rights suits against public officials. In 1980 the legislature again amended the language of the statute to encompass any civil action 'arising from a complaint for damages or injury suffered as a result of any act or omission." This change occurred as a result of this Court's decision in District School Bd. v. Talmadge, 381 So.2d 698 (FIa.19801, which held that complainants could sue pub- lic officials individually, the state, or both for Page 6 the officials' tortious acts. We can find nothing in any staff analysis or report con- cerning either the 1979 or 1980 amendments which mentions the common law or existing law with regard to providing public officials an attorney at public expense, FN7. If the statute were the exclusive remedy by which public officials could obtain re- imbursement of attorney's fees from public funds, because § 111.07 is limited to civil actions, an official's successful defense of misconduct charges brought in proceedings before the Ethics Commission would not qualify for reimbursement of attomey's fees expended in that defense. The commission is an investigatory body and located in the leg- islative branch of government. Commission on Ethics v. Sullivan, 489 So.2d 10 (F1a.1986). Therefore, proceedings before the commission cannot be "civil" actions. This is further evidenced by the fact that 112,317(2 ), FIa.Stat. (1989), provides that upon a finding of a violation of the Code of Ethics and a recommendation of a civil or restitution penalty, the Attorney General must bring a civil action to recover the rec- ommended penalty. Chavez v. City of Tampa, 560 So.2d 1214 (Fla, 2d DCA 1990). Thus, public officials would not be entitled to at- torney's fees under § 111.07 for their suc- cessful defense of misconduct charges before the commission, while under common law they would be so entitled. See Ellison v. Reid, 397 So.2d 352 (Fla. 1st DCA 1981). FN8. We are cognizant that the council members based their claim for attorney's fees on § 1 1 1.07 and did not attempt to recover attorney's fees on a common law theory. Even though neither party raised this issue, we hold that the council members' failure to claim fees under common law does not pre- clude their recovery. When more than one remedy exists. but they are not inconsistent, only a full satisfaction of the right asserted will estop the plaintiff from pursuing other consistent remedies. Furthermore, if a mis- taken remedy is pursued, the proper remedy is not thereby waived. See Board of Public Instruction v. Mathis, 132 Fla. 289, 181 So. O 2013 Thomson Reuters. No Claim to Orig. US Gov. Works, Submitted into the public record in connection with items p1.3 on 02 Todd B. Hannon 568 So.2d 914, 15 Fla. L. Weekly S535 (Cite as: 568 So.2d 914) 147 (1938); McCormick v. Bodeker, 119 Fla. 20, 160 So. 483 (1935); Matthews v. Mat- thews, 133 So.2d 91 (Fla. 2d DCA 1961). f91 We now turn to the city's claim that the district court incorrectly held that the council members pre- vailed in the federal civil rights suit filed by police chief Ray seeking compensatory and punitive dam- ages. Ray settled with the city, the mayor in both her official and individual capacities, and council mem- bers Thornber, Franklin, and Grant in their official capacities, and voluntarily dismissed the action with prejudice. The conditions of the settlement provided that the city was to reinstate Ray as police chief but place him on permanent disability leave. The city also agreed to pay Ray wages retroactively from the date of his firing and not to interfere with Ray's workers' compensation claim. In exchange Ray agreed not to pursue his claim for punitive damages and to dismiss his lawsuit. Several months later Ray voluntarily dismissed the council members in their individual capacities with prejudice on the condition that they would seek their attorney's fees from the city and not against Ray. J1011111 We agree with the district court that the council members prevailed in this action. In general, when a plaintiff voluntarily dismisses an action, the defendant is the prevailing party. Stuart Plaza, Ltd. v. Atlantic Coast Development Corp., 493 So.2d 1136 (Fla. 4th DCA 1986). A determination on the merits is not a prerequisite to an award of attorney's fees where the statute provides that they will inure to the pre- vailing party. Metropolitan Dade County v. Evans, 474 So.2d 392 (Fla. 3d DCA 1985); State Department of Health & Rehabilitative Services v. Hall, 409 So.2d 193 (Fla. 3d DCA 1982). There must be some end to the litigation on the merits so that the court can de- termine whether the party requesting fees has pre- vailed. Simmons v. Schimmel, 476 So.2d 1342 (Fla. 3d DCA 1985), review denied, 486 So.2d 597 (F1a.1986). Ray dismissed the council members in both their of- ficial and individual capacities with prejudice, thus signalling an end to the litigation. Although Ray ob- tained some relief, the council members were merely signatories to the stipulated settlement and did not contribute monetarily. Any relief sought by Ray came from the city and the mayor but not from the council members. Therefore, the council members are entitled to attorney's fees under section 111.07 as prevailing defendants. Page 7 [121[131 Even though the council members are entitled to reimbursement for attorney's fees incurred in the recall election and in the federal civil rights action, they are not entitled to attorney's fees in their efforts to collect those fees. They claim such a right under section 57.105. Fx9 The purpose of this statute is to discourage baseless claims, stonewall defenses, and sham appeals in civil litigation by placing a price tag through attomey's fee awards on losing parties who engage in these activities. Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501 (F1a.1982). While the statute serves a salutary purpose,*920 it may not be extended to every case and every unsuc- cessful litigant. City of Deerfield Beach v. Oli- ver —Hoffman Corp., 396 So.2d 1187 (Fla. 4th DCA), review denied, 407 So.2d 1104 (F1a.1981). The city's defense of the council members' claim did not com- pletely lack a justiciable issue of either law or fact so as to allow them to recover fees against the city under section 57.105. We therefore approve the district court's affirmance of the trial court's refusal to award the council members attorney's fees incurred in this proceeding.FN'o FN9. § 57.105, F1a.Stat. (1981), states: The court shall award a reasonable attor- ney's fee to the prevailing party in any civil action in which the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party. FN10. They are not entitled to recover under 59.46, F1a.Stat. (1987). This statute is in- applicable in this case. We therefore disapprove that portion of the dis- trict court's decision denying reimbursement of at- torney's fees to the council members for successfully enjoining the recall petition and approve Ferrara. We approve the remainder of the district court's decision. It is so ordered. SHAW, C.J., and OVERTON, EHRLICH, BAR- KETT, GRIMES and KOGAN, JJ., concur. F1a.,1990. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. 568 So.2d 914, 15 Fla. L. Weekly S535 (Cite as: 568 So.2d 914) Thornber v. City of Ft. Walton Beach 568 So.2d 914, 15 Fla. L. Weekly S535 END OF DOCUMENT Page 8 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Westlaw, 42 So.2d 582 (Cite as: 42 So.2d 582) Supreme Court of Florida, Division B. WILLIAMS v. CITY OF MIAMI. Nov, 8, 1949, Action by Robert R. Williams against the City of Miami, for a decree of subrogation against the city for the amount paid by plaintiff on a judgment rendered against plaintiff and a surety on a supersedeas bond given by plaintiff and others in compliance with an order to stay execution of final decree fixing date of recall election of plaintiff and others. The Circuit Court, Dade County, Marshall C. Wiseheart, J., entered an order dismissing the bill of complaint and the plaintiff appealed. The Supreme Court, Chapman, J., held that the supersedeas bond was not the obligation of the city and that the city was not interested in the results of the recall election but such interest was personal to and the law required that the cost should be paid by plain- tiff and not by the taxpayers of the City and affirmed the judgment. West Headnotes Subrogation 366 C7;'36 366 Subrogation 366k36 k. Persons as Against Whom Subrogation May Be Enforced. Most Cited Cases Former city commissioner who obtained super- sedeas order and gave supersedeas bond to stay exe- cution of decree fixing date of recall election, was not entitled to decree of subrogation against city for amount of judgment rendered against him on bond, since bond was not city's obligation nor was city in- terested in recall election. *582 Hendricks & Hendricks, Miami, for appellant. Page 1 S. O. Carson, Miami, for appellee. CHAPMAN, Justice. Pursuant to the mandate of this Court ( Williams v. Keyes, 135 Fla. 769, 186 So. 250) a special election was held during the year 1939 in the City of Miami. The question for decision by the voters of the city was, should the appellant Williams be recalled as a Com- missioner of the City of Miami or should he continue in said office? The election was held pursuant to the charter and ordinance of said city. The result thereof was that a majority of the votes cast favored his recall and he was immediately removed from office. See DuBose v. Kelly, 132 Fla. 548, 181 So. 1.1; Williams v. Kelly, 133 Fla. 244, 182 So. 881. The Chancellor below entered a final decree or- dering the recall election held in Williams v. Keyes, supra. The Commissioners of the City of Miami af- fected by the final decree supra obtained a supersedeas order and gave a supersedeas bond in compliance therewith, so as to stay the execution of the terms of the final decree, which fixed the date of holding the recall election. The supersedeas bond was given by the United States Fidelity and Guaranty Company at the direction of the Commissioners of the city then con- fronted by the recall election, It was clear the Com- missioners, inclusive of Williams, would each be personally affected by the election rather than the City of Miami. It was to the personal interest of Williams to give the supersedeas bond and stay the final decree fixing the date of the recall election, Suit was filed against the United States Fidelity and Guaranty Company and Williams, et al., and a joint judgment, during December, 1940, was entered against them in the sum of $4,356.00. The City of Miami was made a party to the suit on the supersedeas bond but an order of dismissal was entered against it and no appeal therefrom was ever perfect- ed. Williams paid or satisfied the judgment and some nine years thereafter, by his bill in equity, seeks a decree of subrogation against the City of Miami for the amount paid by him on the judgment based on the supersedeas bond. The suit was brought on the theory that the supersedeas bond was the obligation of the City of Miami. An order was entered dismissing the C 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 42 So.2d 582 (Cite as: 42 So.2d 582) bill of complaint. It is our view and conclusion that the supersedeas bond was not the obligation of the City of Miami. It was riot interested in the result of the recall election, but such interest was personal to and the law required that the costs should be paid by ap- pellant and not by the taxpayers of the City of Mi- ami. Peck v. Spencer, 26 Fla, 23, 7 So. 642. Affirmed. ADAMS, C. I., and SEBRING and HOBSON, concur. Fla. 1949 Williams v. City of Miami 42 So,2d 582 END OF DOCUMENT Page 2 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 0 2013 Thomson Reuters. No Claim to Orig. US Gov, Works, Westlaw, 18 U.S.C.A. § 1962 Effective:[See Text Amendments] United States Code Annotated Currentness Title 18. Crimes and Criminal Procedure (Refs & Annos) Part 1. Crimes (Refs & Annos) %I Chapter 96. Racketeer Influenced and Corrupt Organizations (Refs & Annos) § 1962. Prohibited activities Page 1 (a) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt in which such person has participated as a principal within the meaning of section 2, title 18, United States Code, to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce. A purchase of secu- rities on the open market for purposes of investment, and without the intention of controlling or participating in the control of the issuer, or of assisting another to do so, shall not be unlawful under this subsection if the securities of the issuer held by the purchaser, the members of his immediate family, and his or their accomplices in any pattem or racketeering activity or the collection of an unlawful debt after such purchase do not amount in the aggregate to one percent of the outstanding securities of any one class, arid do not confer, either in law or in fact, the power to elect one or more directors of the issuer. (b) It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce. (c) It shall he unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt. (d) It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section. CREDIT(S) (Added Pub.L. 91-452, Title IX, § 901(a), Oct. 15. 1970, 84 Stat. 942; amended Pub.L. 100-690, Title VII, § 7033 Nov. 18, 1988, 102 Stat. 4398.) Current through P.L. 112-207 approved 12-7-12 Westlaw. (C) 2013 Thomson Reuters, No Claim to Orig. U.S. Govt. Works. END OF DOCUMENT Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon C 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. 18 U.S.C.A. § 1962 Page 2 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 0 2013 Thomson Reuters. No Claim to Orig. US Gov, Works. W6stlaw, 42 U.S.C.A. § 1983 Effective: October 19, 1996 United States Code Annotated Currentness Title 42. The Public Health and Welfare Chapter 21. Civil Rights (Refs & Annos) Subchapter I. Generally § 1983. Civil action for deprivation of rights Page 1 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunc- tive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. CREDIT(S) (R.S, § 1979; Pub.L. 96-170, § 1, Dec, 29, 1979, 93 Stat. 1284; Pub.L. 104-317, Title III, § 309(c), Oct. 19, 1996, 110 Stat. 3853.) Current through P.L. 112-207 approved 12-7-12 Westlaw. (C) 2013 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. END OF DOCUMENT Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 0 2013 Thomson Reuters. No Claim to Orig. US Gov, Works. Mstlaw. West's F.S.A. § 111.07 Effective:[See Text Amendments] West's Florida Statutes Annotated Currentness Title X. Public Officers, Employees, and Records (Chapters 110-123) cfil Chapter I I I. Public Officers: General Provisions 111.07. Defense of civil actions against public officers, employees, or agents Page 1 Any agency of the state, or any county, municipality, or political subdivision of the state, is authorized to provide an attorney to defend any civil action arising from a complaint for damages or injury suffered as a result of any act or omission of action of any of its officers, employees, or agents for an act or omission arising out of and in the scope of his or her employment or function, unless, in the case of a tort action, the officer, employee, or agent acted in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. Defense of such civil action includes, but is not limited to, any civil rights lawsuit seeking relief personally against the officer, employee, or agent for an act or omission under color of state law, custom, or usage, wherein it is alleged that such officer, employee, or agent has deprived another person of rights secured under the Federal Constitution or laws. Legal representation of an officer, employee, or agent of a state agency may be provided by the Department of Legal Affairs. However, any attorney's fees paid from public funds for any officer, employee, or agent who is found to be personally liable by virtue of acting outside the scope of his or her employment, or was acting in bad faith, with ma- licious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property, may be recovered by the state, county, municipality, or political subdivision in a civil action against such officer, employee, or agent. If any agency of the state or any county, municipality, or political subdivision of the state is authorized pursuant to this section to provide an attorney to defend a civil action arising from a complaint for damages or injury suffered as a result of any act or omission of action of any of its officers, employees, or agents and fails to provide such attorney, such agency, county, municipality, or political subdivision shall reimburse any such defendant who prevails in the action for court costs and reasonable attorney's fees, CREDIT(S) Laws 1972, c. 72-36. § 1; Laws 1979, c. 79-139, § 1; Laws 1980, c. 80-271, § 2; Laws 1981, c. 81-259, § 55; Laws 1983, c. 83-183, § 1. Amended by Laws 1995, c. 95-147. § 677. eff. July 10, 1995. HISTORICAL AND STATUTORY NOTES Amendment Notes: Section 4 of Laws 1980, c. 80-271 provides: "This act shall apply to all actions pending in the trial or appellate courts on the date this act shall take effect [June 30, 1980] and to all actions thereafter initiated, CROSS REFERENCES Negligence actions, waiver of sovereign immunity, see § 768.28. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 0 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. West's F.S.A. § 111.07 Page 2 LIBRARY REFERENCES Counties' 73. Municipal Corporations& 163. Officers and Public Employees 94. States 62. Westlaw Topic Nos. 104, 268, 283, 360. C.J.S. Counties §§ 107 to 108, 118. C.J.S. Municipal Corporations §§ 372 to 373, 376, 378, 382 to 384, 390. C.J.S. Officers and Public Employees §§ 130, 270 to 274, 286, 313 to 320. C.J.S. States §§ 89, 101 to 102, 196 to 198, 202 to 204. RESEARCH REFERENCES ALR Library 47 ALR 5th 553, Payments of Attorneys' Services in Defending Action Brought Against Officials Individually as Within Power or Obligation of Public Body. Encyclopedias Employment of Counsel, FL Jur. 2d Counties & Municipal Corporations § 106. Payment of Officer's Damages and Defense Costs, FL Jur. 2d Cv1. Servts. & Pub. Officers & Employees § 74. Furnishing Information as to Tax Payment; Tort Liability, FL Jur. 2d Taxation § 1529. Forms Florida Pleading and Practice Forms § 37:13, Payment of Attorney Fees and Costs; Reimbursement. Treatises and Practice Aids 6 Florida Practice Series § 9:4, Action Against the State, Its Agencies or Subdivisions is the Exclusive Remedy: When the Tortfeasor May be Held Individually Liable. NOTES OF DECISIONS Attorneys' fees 14 Civil actions 4 Construction and application 1 Criminal charges 3 Damages 13 Discretion 11 Parties 8 Political subdivisions 7 Questions of law and fact 12 Reimbursement to prevailing employees 6 Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon C 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. West's F.S.A. § 111.07 Page 3 Scope of employment 5 Special masters 9 Voluntary dismissal 10 Waiver of sovereign immunity 2 1. Construction and application Individual application of statute governing legal representation of public officers at public expense is to be decided by the respective governmental unit, not the judiciary. Florida Dept. of Ins., Div. of Risk Management v. Amador, App. 3 Dist., 841 So.2d 612 (2003). Officers And Public Employees €='119 This section governing representation of public officers at public expense recognized common-law principle that public officer is entitled to representation at public expense in a lawsuit arising from performance of official duties while serving a public purpose; to deny public official representation for acts purportedly arising from performance of his official duties would have a chilling effect upon proper performance of his duties and diligent representation of public interest. Nuzum v. Valdes, App. 3 Dist., 407 So.2d 277 (1981). Officers And Public Employees €119 Under this section allowing representation of public officer in civil suit at public expense primary determination as to allowance of counsel is placed in respective governmental unit rather than judiciary upon challenge by private litigant, although this does not preclude other properly authorized public officials like attorney general from challenging expenditures made under statute. Nuzum v. Valdes, App. 3 Dist., 407 So.2d 277 (1981). Officers And Public Em- ployees E119 Unless authorized by statute, county funds may not be used to reimburse jailers for the expense of defending them- selves against a federal grand jury indictment seeking to hold them criminally liable for violating the civil rights of jail inmates. Op.Atty.Gen., 074-124, April 18, 1974. 2. Waiver of sovereign immunity Florida statute forbidding state agencies to defend actions against public officers, West's F.S.A. § 111.07, by envi- sioning public defense of individual state officers in damage actions, did not indicate that Florida's waiver of sovereign immunity under West's F.S.A. § 768.28 included waiver of Eleventh Amendment immunity in 42 U.S.C.A. § 1983 actions. Gamble v. Florida Dept. of Health and Rehabilitative Services, C.A.11 (Fla.)1986, 779 F.2d 1509. Federal Courts 266.1 State of Florida has waived its sovereign immunity with respect to civil rights actions arising out of alleged tortious misconduct of its officers or employees; consequently, complaint alleging that a highway patrol officer exceeded his authority by arresting plaintiff for driving while intoxicated when he lacked probable cause to do so stated a claim against the State Highway Patrol. Meeker v. Addison, S.D.Fla.1983, 586 F.Supp. 216. Civil Rights C=1395(6) 3. Criminal charges In the absence of statutory authority, public funds may not be used to reimburse a public official for the expense of defending a criminal charge arising out of his official actions, even though he was found not guilty of such charge. Op.Atty.Gen., 071-253, Aug. 25, 1971. 4. Civil actions City council member who successfully defended charges of unethical conduct before the Florida Commission on © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon West's F.S.A. § 1 1 1.07 Page 4 Ethics was not entitled to city reimbursement of legal expenses under this section; since the Commission is part of the legislative branch, a proceeding before that investigative body is not a "civil action." Chavez v. City of Tampa, App. 2 Dist., 560 So.2d 1214 (1990), review denied 576 So.2d 285. Municipal Corporations 163 Victim's allegations that employee of Department of Corrections exceeded his authority and acted outside scope of his employment by causing prisoner to be reclassified to minimum custody status, and that as a result, prisoner escaped and shot victim, were insufficient to state cause of action against employee alone in his personal capacity. Reddish v. Smith, 468 So.2d 929 (1985). Prisons €399 A retired county officer is entitled to be reimbursed for reasonable attorney's fees incurred in successfully defending a civil lawsuit for actions taken by that county officer while in office if the charge arose from the performance of official duties and while the officer was serving a public purpose. Op.Atty.Gen., 98-12, Feb. 16, 1998 (1998 WL 65015). 5. Scope of employment Marine patrol officers in the Florida department of natural resources, while employed in approved off -duty part-time jobs with other employers are not then performing official duties of the department of natural resources and are not within the scope of their employment with said department and thus, would not be entitled to a publicly provided defense by or at the expense of the department of natural resources under this section to defend any civil action arising from a complaint for damages or injury suffered as a result of any act or omission of action arising out of and in the scope of employment with another employer. Op.Atty.Gen., 82-31, April 30. 1982 (1982 WL 174178). 6. Reimbursement to prevailing employees City council members were prevailing parties entitled to reimbursement for attorney fees incurred in civil rights action brought by police chief after members voted to discharge him; police chief voluntarily dismissed council members in their individual capacities with prejudice as part of settlement with city on condition that they would seek their at- torney fees from city and not against him. Thornber v. City of Ft. Walton Beach, 568 So.2d 914 (1990). Municipal Corporations €163 This section governing awards of attorney's fees to public official is not intended to replace common-law remedy completely, and is not exclusive mechanism authorizing award of attorney's fees to public officials defending against litigation arising from performance of their public duties. Thornber v. City of Ft. Walton Beach, 568 So.2d 914 (1990). Officers And Public Employees F%'101; Statutes 222 Police officer who was joined as codefendant with county, his employer, in civil damages action arising out of his official duties "prevailed" within meaning of West's F.S.A. § 111.07, which provides in pertinent part that if county is authorized under that statute to provide attorney to defend civil action arising from complaint for damages suffered as result of any act or omission of its employees and fails to provide such attorney, county shall reimburse such defendant who prevails in the action for court costs and reasonable attorney fees, when case against the officer was dismissed with prejudice pursuant to settlement effected by the county. Metropolitan Dade County v. Evans, App. 3 Dist.. 474 So.2d 392 (19851. Counties €'73 7, Political subdivisions The Duval County Research and Development Authority is a "political subdivision of the state" for purposes of West's F.S.A. § 111.07, which authorizes, under certain circumstances, the defense at public expense of civil actions brought against public officers, employees or agents. Op.Atty.Gen., 89-22, April 12, 1989 (1989 WL 431615). © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon West's F.S.A. § 1 1 1.07 8. Parties Page 5 City was not obligated to pay legal fees of city councilmen in defending various actions arising out of councilman's dismissal of city officials, as councilmen were not named parties as required under this section. City of Fort Walton Beach v. Grant, App. 1 Dist.. 544 So.2d 230 (1989), approved in part, quashed in part 568 So.2d 914. Municipal Corporations 163 9. Special masters A special master appointed by the circuit court to hear child support enforcement matters is entitled to a defense at public expense in a civil action if the misconduct alleged in the civil action arose from the performance of official duties and occurred while the master was serving a public purpose. Op.Atty.Gen., 87-46, May 21, 1987 (1987 WL 269927). 10. Voluntary dismissal City councilman was entitled to reimbursement for legal fees, under this section, where dismissed city police chief brought federal civil rights action against councilman and then terminated action by voluntary dismissal. City of Fort Walton Beach v. Grant, App. 1 Dist., 544 So.2d 230 (1989), approved in part, quashed in part 568 So.2d 914. Mu- nicipal Corporations 6€'163 11. Discretion Sheriff was not required to pay, out of public funds, for attorneys fees and legal costs of one of his deputies who successfully defended himself against criminal charges arising out of his official conduct, as § 111.065 merely gave option to sheriff to provide costs and fees. Florida Police Benev. Ass'n, Inc. v. Miller, App. 5 Dist., 464 So.2d 236 (1985), petition for review denied 475 So.2d 694. Sheriffs And Constables l'32 Whether director of division of alcoholic beverages and executive employees of division were entitled to representa- tion at public expense in a civil suit brought against them for alleged interference with advantageous business rela- tionships and intentional tort of conspiracy was a determination primarily for the executive agency, and thus trial court order prohibiting staff counsel from department of business regulations from further representation of director and executive employees in their individual capacities constituted departure from essential requirements of law and would be quashed. Nuzum v. Valdes, App. 3 Dist., 407 So.2d 277 (1981). Officers And Public Employees f3119 Pursuant to this section, the Department of Legal Affairs may, in its discretion, represent a chief judge of a judicial circuit in a tort action brought against the judge in state court or in a 42 U.S.C.A. § 1983 action brought in federal court. Op.Atty.Gen., 89-2, Jan. 9, 1989 (1989 WL 431600). 12. Questions of law and fact The issue of personal liability as to whether the tax collector, either individually, or as a tax collector, when the local abstract and title company makes an inquiry by telephone concerning whether or not taxes have been paid on parcels of real estate and an employee in his office gives erroneous information to the inquiring abstract and title company necessarily involves mixed questions of law and fact which the department of legal affairs is not empowered to resolve and which must be determined by the courts. Op.Atty.Gen., 080-57, June 17, 1980 (1980 WL 100599). 13. Damages 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon West's F.S.A. § 111.07 Page 6 The department of criminal law enforcement is not authorized by law to pay judgment for compensatory or punitive damages rendered against a special agent of the department in civil suit arising prior to the enactment of § 768.28. Even if § 768.28 applied, payment of punitive damages would not be authorized because this provision expressly prohibits payment of punitive damages judgments. Op.Atty.Gen., 077-98, Sept. 21, 1977 (1977 WL 26612). 14. Attorneys' fees City council members' failure to claim attorney fees incurred in enjoining recall petition under common law did not preclude recovery of attorney fees from city under common-law theory. Thornber v. City of Ft. Walton Beach, 568 So.2d 914 (1990). Municipal Corporations eC2163 West's F. S. A. § 111,07, FL ST § 111.07 Current through Ch. 268 (End) of the 2012 2nd Reg. Sess. and the 2012 Extraordinary Apportionment Sess. of the Twenty -Second Legislature (C) 2013 Thomson Reuters. No Claim to Orig. US Gov. Works END OF DOCUMENT © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items Di.3 on 02-14-13 Todd B. Hannon Westlaw. West's F.S.A. § 166.021 Effective: July 1, 2011 West's Florida Statutes Annotated Currentness Title XII. Municipalities (Chapters 165-185) 911Chapter 166. Municipalities (Refs & Annos) r`ii Part I. General Provisions —1,—• 166.021. Powers Page 1 (I) As provided in s. 2(b), Art. VIII of the State Constitution, municipalities shall have the governmental, corporate, and proprietary powers to enable them to conduct municipal government, perform municipal functions, and render municipal services, and may exercise any power for municipal purposes, except when expressly prohibited by law. (2) "Municipal purpose" means any activity or power which may be exercised by the state or its political subdivisions. (3) The Legislature recognizes that pursuant to the grant of power set forth in s. 2(b), Art. Vill of the State Constitu- tion, the legislative body of each municipality has the power to enact legislation concerning any subject matter upon which the state Legislature may act, except: (a) The subjects of annexation, merger, and exercise of extraterritorial power, which require general or special law pursuant to s. 2(c). Art. Vill of the State Constitution; (b) Any subject expressly prohibited by the constitution: (c) Any subject expressly preempted to state or county government by the constitution or by general law; and (d) Any subject preempted to a county pursuant to a county charter adopted under the authority of ss. 1(g), 3, and 6(e), Art. VIII of the State Constitution. (4) The provisions of this section shall be so construed as to secure for municipalities the broad exercise of home rule powers granted by the constitution. It is the further intent of the Legislature to extend to municipalities the exercise of powers for municipal governmental, corporate, or proprietary purposes not expressly prohibited by the constitution, general or special law, or county charter and to remove any limitations, judicially imposed or otherwise, on the ex- ercise of home rule powers other than those so expressly prohibited. However, nothing in this act shall be construed to permit any changes in a special law or municipal charter which affect the exercise of extraterritorial powers or which affect an area which includes lands within and without a municipality or any changes in a special law or municipal charter which affect the creation or existence of a municipality, the terms of elected officers and the manner of their election except for the selection of election dates and qualifying periods for candidates and for changes in terms of office necessitated by such changes in election dates, the distribution of powers among elected officers, matters pre- scribed by the charter relating to appointive boards, any change in the form of government, or any rights of municipal employees, without approval by referendum of the electors as provided in s. 166.031. Any other limitation of power upon any municipality contained in any municipal charter enacted or adopted prior to July 1, 1973, is hereby nullified and repealed. © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items 01.3 on 02-14-13 Todd B. Hannon West's F.S.A. § 166.021 Page 2 (5) All existing special acts pertaining exclusively to the power or jurisdiction of a particular municipality except as otherwise provided in subsection (4) shall become an ordinance of that municipality on the effective date of this act, subject to modification or repeal as other ordinances. (6) The governing body of a municipality may require that any person within the municipality demonstrate the ex- istence of some an-angement or contract by which such person will dispose of solid waste in a manner consistent with the ordinances of the county or municipality or state or federal law. For any person who will produce special wastes or biomedical waste, as the same may be defined by state or federal law or county or city ordinance, the municipality may require satisfactory proof of a contract or similar arrangement by which special or biomedical wastes will be collected by a qualified and duly licensed collector and disposed of in accordance with the laws of Florida or the Federal Government. (7) Entities that are funded wholly or in part by the municipality, at the discretion of the municipality, may be required by the municipality to conduct a performance audit paid for by the municipality. An entity shall not be considered as funded by the municipality by virtue of the fact that such entity utilizes the municipality to collect taxes, assessments, fees, or other revenue. If an independent special district receives municipal funds pursuant to a contract or interlocal agreement for the purposes of funding, in whole or in part, a discrete program of the district, only that program may be required by the municipality to undergo a performance audit. (8)(a) The Legislature finds and declares that this state faces increasing competition from other states and other countries for the location and retention of private enterprises within its borders. Furthermore, the Legislature finds that there is a need to enhance and expand economic activity in the municipalities of this state by attracting and retaining manufacturing development, business enterprise management, and other activities conducive to economic promotion, in order to provide a stronger, more balanced, and stable economy in the state. to enhance and preserve purchasing power and employment opportunities for the residents of this state, and to improve the welfare and competitive posi- tion of the state. The Legislature declares that it is necessary and in the public interest to facilitate the growth and creation of business enterprises in the municipalities of the state. (b) The governing body of a municipality may expend public funds to attract and retain business enterprises, and the use of public funds toward the achievement of such economic development goals constitutes a public purpose. The provisions of this chapter which confer powers and duties on the governing body of a municipality, including any powers not specifically prohibited by law which can be exercised by the governing body of a municipality, shall be liberally construed in order to effectively carry out the purposes of this subsection. (c) For the purposes of this subsection, it constitutes a public purpose to expend public funds for economic devel- opment activities, including, but not limited to, developing or improving local infrastructure, issuing bonds to finance or refinance the cost of capital projects for industrial or manufacturing plants, leasing or conveying real property, and making grants to private enterprises for the expansion of businesses existing in the community or the attraction of new businesses to the community. (d) A contract between the governing body of a municipality or other entitv engaged in economic development ac- tivities on behalf of the municipality and an economic development agency must require the agency or entity receiving municipal funds to submit a report to the governing body of the municipality detailing how the municipal funds are spent and detailing the results of the economic development agency's or entity's efforts on behalf of the municipality. By January 15, 2011, and annually thereafter, the municipality shall file a copy of the report with the Office of Eco- nomic and Demographic Research and post a copy of the report on the municipality's website. (e) 1. By January 15, 2011, and annually thereafter, each municipality having annual revenues or expenditures greater than $250.000 shall report to the Office of Economic and Demographic Research the economic development incen- tives in excess of $25,000 given to any business during the municipality's previous fiscal year. The Office of Eco- 0 2013 Thomson Reuters, No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items 013 on 02-14-13 Todd B. Hannon West's F.S.A. § 166.021 Page 3 nomic and Demographic Research shall compile the information from the municipalities into a report and provide the report to the President of the Senate, the Speaker of the House of Representatives, and the Department of Economic Opportunity, IFN11 Economic development incentives include: a. Direct financial incentives of monetary assistance provided to a business from the municipality or through an or- ganization authorized by the municipality. Such incentives include, but are not limited to, grants, loans, equity in- vestments, loan insurance and guarantees, and training subsidies. b. indirect incentives in the form of grants and loans provided to businesses and community organizations that provide support to businesses or promote business investment or development. c. Fee -based or tax -based incentives, including, but not limited to, credits, refunds, exemptions, and property tax abatement or assessment reductions. d. Below -market rate leases or deeds for real property. 2. A municipality shall report its economic development incentives in the format specified by the Office of Economic and Demographic Research. 3. The Office of Economic and Demographic Research shall compile the economic development incentives provided by each municipality in a manner that shows the total of each class of economic development incentives provided by each municipality and all municipalities. (f) This subsection does not limit the home rule powers granted by the State Constitution to municipalities. (9)(a) As used in this subsection, the term: 1. "Authorized person" means a person: a. Other than an officer or employee, as defined in this paragraph, whether elected or commissioned or not, who is authorized by a municipality or agency thereof to incur travel expenses in the performance of official duties; b. Who is called upon by a municipality or agency thereof to contribute time and services as consultant or advisor; or c. Who is a candidate for an executive or professional position with a municipality or agency thereof, 2. "Employee" means an individual, whether commissioned or not, other than an officer or authorized person as defined in this paragraph, who is filling a regular or full-time authorized position and is responsible to a municipality or agency thereof. 3. "Officer" means an individual who, in the performance of his or her official duties, is vested by law with sovereign powers of government and who is either elected by the people, or commissioned by the Governor and who has juris- diction extending throughout the municipality, or any person lawfully serving instead of either of the foregoing two classes of individuals as initial designee or successor. 4. 'Traveler" means an officer, employee, or authorized person, when performing travel authorized by a municipality or agency thereof, (b) Notwithstanding s. 112.061, the governing body of a municipality or an agency thereof may provide for a per diem 0 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon West's F.S.A. § 166.021 Page 4 and travel expense policy for its travelers which varies from the provisions of s. [12.061. Any such policy provided by a municipality or an agency thereof on January 1, 2003, shall be valid and in effect for that municipality or agency thereof until otherwise amended. A municipality or agency thereof that provides any per diem and travel expense policy pursuant to this subsection shall be deemed to be exempt from all provisions of s. 112.061. A municipality or agency thereof that does not provide a per diem and travel expense policy pursuant to this subsection remains subject to all provisions of s. 112.061. (c) Travel claims submitted by a traveler in a municipality or agency thereof which is exempted from the provisions of s. 112.061, pursuant to paragraph (b), shall not be required to be sworn to before a notary public or other officer authorized to administer oaths, but any claim authorized or required to be made under any per diem and travel expense policy of a municipality or agency thereof must contain a statement that the expenses were actually incurred by the traveler as necessary travel expenses in the performance of official duties and shall be verified by a written declaration that it is true and correct as to every material matter; and any person who willfully makes and subscribes any such claim that he or she does not believe to he true and correct as to every material matter, or who willfully aids or assists in, or procures, counsels, or advises the preparation or presentation of such a claim that is fraudulent or is false as to any material matter, whether or not such falsity or fraud is with the knowledge or consent of the person authorized or required to present such claim, commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Whoever receives an allowance or reimbursement by means of a false claim is civilly liable in the amount of the overpayment for the reimbursement of the public fund from which the claim was paid. CREDIT(S) Laws 1973, c. 73-129, § I; Laws 1977, c. 77-174, § 1. Amended by Laws 1990, c. 90-332, § 2, eff. July 3, 1990; Laws 1992, c. 92-90, § 2, eff. April 8, 1992; Laws 1993, c. 93-207, § 2, eff. May 12, 1993;.Laws 1994, c. 94-332, § 2. eff. Jan. 1, 1995; Laws 1995. c. 95-178, § 1, eff. Jan. 1, 1996; Laws 1998, c. 98-37, § 1, eff. Apri130, 1998; Laws 2003, c. 2003-125, § 1, eff. June 10, 2003; Laws 2010, c. 2010-147, § 2. eff. July 1. 2010; Laws 2011, c. 2011-34. § 22, eff. May 5, 2011; Laws 2011, c. 2011-142, § 60. eff. July 1, 2011; Laws 2011, c. 2011-143, § 3, eff. July 1, 2011. ITN 11 As amended by Laws 2011, c. 2011-142. § 60. Laws 2011, c. 2011-34, § 22 reads "President of the Senate and the Speaker of the House of Representatives" rather than "Department of Economic Opportuni- ty". Current through Ch. 268 (End) of the 2012 2nd Reg. Sess. and the 2012 Extraordinary Apportionment Sess. of the Twenty -Second Legislature (C) 2013 Thomson Reuters. No Claim to Orig. US Gov. Works END OF DOCUMENT Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon 0 2013 Thomson Reuters. No Claim to Orig, US Gov. Works. West Law. West's F.S.A. § 772.103 Page 1 c Effective:[See Text Amendments] West's Florida Statutes Annotated Currentness Title XLV. Torts (Chapters 766-774) (Refs & Annos) 'I Chapter 772. Civil Remedies for Criminal Practices —o—o 772.103. Prohibited activities It is unlawful for any person: (1) Who has with criminal intent received any proceeds derived, directly or indirectly, from a pattern of criminal activity or through the collection of an unlawful debt to use or invest, whether directly or indirectly, any part of such proceeds, or the proceeds derived from the investment or use thereof, in the acquisition of any title to, or any right, interest, or equity in, real property or in the establishment or operation of any enterprise. (2) Through a pattern of criminal activity or through the collection of an unlawful debt, to acquire or maintain, directly or indirectly, any interest in or control of any enterprise or real property. (3) Employed by, or associated with, any enterprise to conduct or participate, directly or indirectly, in such enterprise through a pattern of criminal activity or the collection of an unlawful debt. (4) To conspire or endeavor to violate any of the provisions of subsection (1), subsection (2), or subsection (3). CREDIT(S) Laws 1986, c. 86-277, § 3. Current through Ch. 268 (End) of the 2012 2nd Reg. Sess. and the 2012 Extraordinary Apportionment Sess. of the Twenty -Second Legislature (C) 2013 Thomson Reuters, No Claim to Orig. US Gov. Works END OF DOCUMENT Submitted into the public record in connection with items 01.3 on 02-14-13 Todd B. Hannon © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Westlaw. West's F.S.A. Const, Art. 7 § 10 Page 1 West's Florida Statutes Annotated Currentness Florida Constitution--1968 Revision (Refs & Annos) Article VII. Finance and Taxation LRefs & Annos) § 10. Pledging credit Neither the state nor any county, school district, municipality, special district, or agency of any of them, shall become a joint owner with, or stockholder of, or give, lend or use its taxing power or credit to aid any corporation, association, partnership or person; but this shall not prohibit laws authorizing: (a) the investment of public trust funds; (b) the investment of other public funds in obligations of, or insured by, the United States or any of its instrumentali- ties; (c) the issuance and sale by any county, municipality, special district or other local governmental body of (1) revenue bonds to finance or refinance the cost of capital projects for airports or port facilities, or (2) revenue bonds to finance or refinance the cost of capital projects for industrial or manufacturing plants to the extent that the interest thereon is exempt from income taxes under the then existing laws of the United States, when, in either case, the revenue bonds are payable solely from revenue derived from the sale, operation or leasing of the projects. If any project so financed, or any part thereof, is occupied or operated by any private corporation, association, partnership or person pursuant to contract or lease with the issuing body, the property interest created by such contract or lease shall be subject to tax- ation to the same extent as other privately owned property. (d) a municipality, county, special district, or agency of any of them, being a joint owner of, giving, or lending or using its taxing power or credit for the joint ownership, construction and operation of electrical energy generating or transmission facilities with any corporation, association, partnership or person. CREDIT(S) Amended, general election, Nov. 5, 1974. Current through Nov. 6, 2012, General Election (C) 2013 Thomson Reuters. No Claim to Orig. US Gov. Works END OF DOCUMENT 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Submitted into the public record in connection with items DI.3 on 02-14-13 Todd B. Hannon