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HomeMy WebLinkAboutCRRC Member Wales - Standing MemoCarlton Fields Memorandum To: City of Miami Board of Commissioners, Mayor Tomas Regalado, and Members of the Charter Review and Reform Committee From: Justin S. Wales, Esq. Date: June 13, 2016 Re: Proposed Standing Amendment to Citizens' Bill of Rights On May 2, 2016, the City of Miami Charter Review and Reform Committee voted 9 to 2 in favor of an amendment to the Charter that ensures Miami officials and employees abide by its provisions and grants citizens of the City the express right to enforce the Charter's provisions in a court of law. The proposed amendment accomplishes this aim by adding a provision to the Charter's Citizens' Bill of Rights that expressly grants City residents the right "To Be Governed By The Rule of Law.": 1. To Be Governed By the Rule of Law. The City of Miami Charter is the Constitution of the City of Miami and the City shall abide by all of its provisions. The Proposed amendment also adds language which strengthens the existing remedial provision of the Citizens' Bill of Rights by including an express grant of standing to Citizens to enforce it in a Court of law: (C) Remedies for Violations. Citizens of the City shall have standing to bring legal actions to enforce the City Charter, the Citizens Bill of Rights, and the Miami -Dade County Citizens' Bill of Rights as applied to the City. Such actions shall be filed in Miami -Dade County Circuit Court pursuant to its general equity jurisdiction and, if successful, the plaintiff shall be entitled to recover costs, but not attorney's fees, as fixed by the court. Any public official or employee who is found by the court to have willfully violated this article shall forthwith forfeit his or her office or employment. In any suit by citizen alleging a violation of this Bill of Rights filed in the Dade County Circuit Court pursuant to its general equity jurisdiction, the plaintiff, is successful shall be entitled to recover costs, but not attorney's fees, as fixed by the 107904860.1 court. Any public official, or employee, who is found by the court to have willfully violated this article shall f rthwith f rf it his er her office p1 In a legal memorandum prepared by the City of Miami's attorney's office titled "OVERV I FH W OF CITY OF MIAMI'S LEGAL ARGUMENTS IN CASES INVOLVING CITIZEN STANDING," the office of the City Attorney took the position that "a municipal charter cannot confer standing." This position is wrong. Relying on the Third District Court of Appeal's 2015 Solares v. City of Miami, 166 So. 3d 886, 88-889 (Fla. 3d DCA 2015) decision, the City Attorney asserts that a municipal charter cannot expressly confer standing to its citizens. Solares, however, did not even address whether a municipality can grant, through an express provision in its Charter, standing to enforce its provisions. Solares held that a municipal charter, standing alone, does not imply a right of standing to citizens to enforce provisions of the charter unless he can prove the violation causes him to suffer a "special injury" different from other citizens generally. Similarly, the only other case relied upon by the City for the proposition that a municipality cannot grant its citizens standing is Winn -Dixie Stores, Inc. v. Ferris, 408 So. 2d 650 (Fla. 4th DCA 1982), which is utterly irrelevant because it did not consider whether a municipality can grant standing to its citizens through an express provision within its charter. Rather, it held that circuit court The proposed amendment to the City's Citizens' Bill of Rights' remedial clause mirrors the provisions contained in remedial provision of Miami -Dade County's Citizens' Bill of Rights, which states: (C) Remedies for Violations. A citizens may bring a cause of action alleging a violation of this article filed in the Dade County Circuit Court pursuant to its general equity jurisdiction and if successful, shall be entitled to recover costs as fixed by the Court. The Commission on Ethics and Public Trusts may also enforce the provisions of this article and may impose any penalty authorized by County Code not otherwise prohibited by a collective bargaining agreement, for a violation of this Article. Any penalty imposed by the Commission on Ethics and Public Trust pursuant to this subsection may be enforced in the Miami -Dade County Circuit Court. 2 107904860.1 jurisdiction cannot be created by ordinance where it is preempted by a provision of the State constitution. There is no preemption here, and a Charter provision is not an ordinance. Under Florida law, circuit courts are tribunals of plenary jurisdiction and have authority over any matter not expressly denied to them by the constitution or applicable statutes. Art. V, § 5, Fla. Cons. Because the circuit courts are plenary in nature, standing under Florida law is not employed in the same limited way it is under the Article III "case or controversy" restriction of the federal constitution. See, Dep't of Revenue v. Kuhnlein, 646 So. 2d 717, 720-21 (Fla. 1994). Rather, it is a waivable affirmative defense which does not effect a court's subject matter jurisdiction to hear a case. See, e.g., Stratton v. 6000 Indian Creek, LLC, 95 So. 3d 334, 336 (Fla. 3d DCA 2012) ("The issue of standing is an affirmative defense that can be waived" and standing arguments do not impact the court's subject matter jurisdiction); see also Glynn v. First Union Nat'l Bank, 912 So. 2d 357, 358 (Fla 4th DCA 2005) ("There is no question that lack of standing is an affirmative defense that can be raised by the defendant and that failure to raise it generally results in waiver."). The proposal before the commission is to add an express provision that confers standing to the Citizens of the City to enforce the terms of the City Charter and Bill of Rights. Standing and causes of action are often granted by legislation without regard to "Special Injury", See, e.g., Fla. Wildlife Fed'n v. State Dep't of Envtl. Reg., 390 So. 2d 64, 67 (Fla. 1980) (holding that a showing of special injury is not required where legislation expressly confers standing). In fact, the Miami -Dade County Citizens' Bill of Rights expressly confers standing on Miami -Dade County citizens to enforce the provisions of its Bill of Rights and its standing provision has been reviewed by Florida's Third District Court of Appeal in Krantzler v, Bd. of Cnty. Commissioners, who rejected the argument that citizens wishing to sue under the County's Citizens Bill of 3 107904860.1 Rights' standing provision (which mirrors the provisions proposed here) must demonstrate a special injury, noting that "[i]f a tax paying citizen of Dade County could not contest alleged violations of this Bill in a court of equity, he would have no recourse for misappropriations of his tax dollars, and the stated purposes of the Bill would be ignored." 354 So. 2d 126 at 129. (Fla. 3d DCA 1978). Under the City's unsupported legal theory, Krantzler's holding is ignored, and the County's Citizens' Bill of Rights, as well as Article VII of the County Charter which also grants standing, are null and void. The City Attorney also argues that granting Citizens' standing will subject the City to a deluge of lawsuits from citizens unsatisfied with the Commission's political decisions. This is absurd because it is contradicted by experience and common sense. The Citizens' Bill of Rights has granted Miami -Dade County citizens standing to enforce its provisions for upwards of 40- years and has resulted in precisely one reported decision in which it was used as a basis of standing. See, Krantzler v, Bd. of Cnty. Commissioners, 354 So. 2d 126 (Fla. 3d DCA 1978). Given the extreme cost of litigation, the risk of § 57.105 and bar sanctions to attorneys filing frivolous lawsuits, and the fact that attorney's fees are expressly not recoverable under the proposed amendment, the City Attorney's argument that the City should not confer standing for fear of frivolous litigation is disingenuous. 4 107904860.1